SUCCESSION. SET 2.

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA
FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this
Court 1 involving the probate of the two wills of the late Dolores
Luchangco Vitug, who died in New York, U. S.A., on November 10,
1980, naming private respondent Rowena Faustino-Corona executrix.
In our said decision, we upheld the appointment of Nenita Alonte as
co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's)
widower, petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for
authority from the probate court to sell certain shares of stock and
real properties belonging to the estate to cover allegedly his advances
to the estate in the sum of P667,731.66, plus interests, which he
claimed were personal funds. As found by the Court of Appeals, 2 the
alleged advances consisted of P58,147.40 spent for the payment of
estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as
"increment thereto." 3 According to Mr. Vitug, he withdrew the sums
of P518,834.27 and P90,749.99 from savings account No. 35342-038
of the Bank of America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the
ground that the same funds withdrawn from savings account No.
35342-038 were conjugal partnership properties and part of the
estate, and hence, there was allegedly no ground for reimbursement.
She also sought his ouster for failure to include the sums in question
for inventory and for "concealment of funds belonging to the
estate." 4
Vitug insists that the said funds are his exclusive property having
acquired the same through a survivorship agreement executed with
his late wife and the bank on June 19, 1970. The agreement provides:
We hereby agree with each other and with the
BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter
referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us
with the BANK in our joint savings current
account shall be the property of all or both of us
and shall be payable to and collectible or
withdrawable by either or any of us during our
lifetime, and after the death of either or any of us
shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and
collectible or withdrawable by such survivor or
survivors.
We further agree with each other and the BANK
that the receipt or check of either, any or all of us
during our lifetime, or the receipt or check of the
survivor or survivors, for any payment or
withdrawal made for our above-mentioned
account shall be valid and sufficient release and
discharge of the BANK for such payment or
withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted
"the motion to sell some of the estate of Dolores L. Vitug, the
proceeds of which shall be used to pay the personal funds of
Romarico Vitug in the total sum of P667,731.66 ... ." 7

On the other hand, the Court of Appeals, in the petition for certiorari
filed by the herein private respondent, held that the above-quoted
survivorship agreement constitutes a conveyance mortis causa which
"did not comply with the formalities of a valid will as prescribed by
Article 805 of the Civil Code," 8 and secondly, assuming that it is a
mere donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge
dated November 26, 1985 (Annex II, petition) is
hereby set aside insofar as it granted private
respondent's motion to sell certain properties of
the estate of Dolores L. Vitug for reimbursement
of his alleged advances to the estate, but the same
order is sustained in all other respects. In
addition, respondent Judge is directed to include
provisionally the deposits in Savings Account
No. 35342-038 with the Bank of America,
Makati, in the inventory of actual properties
possessed by the spouses at the time of the
decedent's death. With costs against private
respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate
court's ruling on the strength of our decisions inRivera v. People's
Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we
sustained the validity of "survivorship agreements" and considering
them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis
causa, which should be embodied in a will. A will has been defined
as "a personal, solemn, revocable and free act by which a capacitated
person disposes of his property and rights and declares or complies
with duties to take effect after his death." 14 In other words, the
bequest or device must pertain to the testator. 15 In this case, the
monies subject of savings account No. 35342-038 were in the nature
of conjugal funds In the case relied on, Rivera v. People's Bank and
Trust Co., 16 we rejected claims that a survivorship agreement
purports to deliver one party's separate properties in favor of the
other, but simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the
assumption that Stephenson was the exclusive
owner of the funds-deposited in the bank, which
assumption was in turn based on the facts (1) that
the account was originally opened in the name of
Stephenson alone and (2) that Ana Rivera "served
only as housemaid of the deceased." But it not
infrequently happens that a person deposits
money in the bank in the name of another; and in
the instant case it also appears that Ana Rivera
served her master for about nineteen years
without actually receiving her salary from him.
The fact that subsequently Stephenson transferred
the account to the name of himself and/or Ana
Rivera and executed with the latter the
survivorship agreement in question although
there was no relation of kinship between them but
only that of master and servant, nullifies the
assumption that Stephenson was the exclusive
owner of the bank account. In the absence, then,
of clear proof to the contrary, we must give full
faith and credit to the certificate of deposit which
recites in effect that the funds in question
belonged to Edgar Stephenson and Ana Rivera;
that they were joint (and several) owners thereof;
and that either of them could withdraw any part
or the whole of said account during the lifetime

SUCCESSION. SET 2.
of both, and the balance, if any, upon the death of
either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an
aleatory contract whereby, according to article
1790 of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do
something as an equivalent for that which the
other party is to give or do in case of the
occurrence of an event which is uncertain or will
happen at an indeterminate time. As already
stated, Leonarda was the owner of the house and
Juana of the Buick automobile and most of the
furniture. By virtue of Exhibit C, Juana would
become the owner of the house in case Leonarda
died first, and Leonarda would become the owner
of the automobile and the furniture if Juana were
to die first. In this manner Leonarda and Juana
reciprocally assigned their respective property to
one another conditioned upon who might die
first, the time of death determining the event
upon which the acquisition of such right by the
one or the other depended. This contract, as any
other contract, is binding upon the parties thereto.
Inasmuch as Leonarda had died before Juana, the
latter thereupon acquired the ownership of the
house, in the same manner as Leonarda would
have acquired the ownership of the automobile
and of the furniture if Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party,
and hence it must be presumed to be conjugal, having been acquired
during the existence of the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos, for
obvious reasons, because it was to take effect after the death of one
party. Secondly, it is not a donation between the spouses because it
involved no conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no modification
petition of the conjugal partnership, as held by the Court of
Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to
circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property, say, by
way of a joint and several bank account, more commonly
denominated in banking parlance as an "and/or" account. In the case
at bar, when the spouses Vitug opened savings account No. 35342038, they merely put what rightfully belonged to them in a moneymaking venture. They did not dispose of it in favor of the other,
which would have arguably been sanctionable as a prohibited
donation. And since the funds were conjugal, it can not be said that
one spouse could have pressured the other in placing his or her
deposits in the money pool.

an event which is uncertain, or which is to occur

at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory
contract depends on either the happening of an event which is (1)
"uncertain," (2) "which is to occur at an indeterminate time." A
survivorship agreement, the sale of a sweepstake ticket, a transaction
stipulating on the value of currency, and insurance have been held to
fall under the first category, while a contract for life annuity or
pension under Article 2021, et sequentia, has been categorized under
the second. 25 In either case, the element of risk is present. In the case
at bar, the risk was the death of one party and survivorship of the
other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se
not contrary to law its operation or effect may be
violative of the law. For instance, if it be shown
in a given case that such agreement is a mere
cloak to hide an inofficious donation, to transfer
property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and
annulled upon such grounds. No such vice has
been imputed and established against the
agreement involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had
been executed for such unlawful purposes, or, as held by the
respondent court, in order to frustrate our laws on wills, donations,
and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death a
vested right over the amounts under savings account No. 35342-038
of the Bank of America. Insofar as the respondent court ordered their
inclusion in the inventory of assets left by Mrs. Vitug, we hold that
the court was in error. Being the separate property of petitioner, it
forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated
June 29, 1987, and its resolution, dated February 9, 1988, are SET
ASIDE.
No costs.
SO ORDERED.

The validity of the contract seems debatable by reason of its

"survivor-take-all" feature, but in reality, that contract imposed a
mere obligation with a term, the term being death. Such agreements
are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the
parties or both reciprocally bind themselves to
give or to do something in consideration of what
the other shall give or do upon the happening of

SUCCESSION. SET 2.
G.R. No. L-10806

July 6, 1918

MONICA BONA, petitioner-appellant,

vs.
HOSPICIO BRIONES, ET AL., objectors-appellees.
Ramon Pimentel for appellant.
Ocampo and De la Rosa for appellees.
TORRES, J.:
Counsel for Monica Bona, the widow by the second marriage of the
deceased Francisco Briones who died on August 14, 1913, applied for
the probate of the will which the said deceased husband on
September 16, 1911, executed during his lifetime; for the fixing of a
day for the hearing and presentation of evidence after all the
interested parties had been cited; and then for the approval of the
partition had been cited; and then for the approval of the partition
property made by the testator in the said will. By an order dated
January 20, 1915, Monica Bona's petition was granted and a date set
for the trial and other necessary proceedings for the probate of said
will.
Counsel for Hospicio, Gregoria, and Carmen, all surnamed Briones,
the legitimate children by the first marriage of the testator, by a
pleading dated March 5, 1915, opposed the probate of the will
presented by the widow of the deceased Briones, alleging that the
said will was executed before two witnesses only and under unlawful
and undue pressure or influence exercised upon the person of the
testator who thus signed through fraud and deceit; and he prayed that
for that reason the said will be declared null and of no value, with
costs against the petitioners.
The trial of the case opened and in the presence of counsel for both
parties, Gregorio Bustilla, one of the witnesses of the said will, was
examined and he stated under oath: That he as well as Sixto
Barrameda and Domingo de la Fuente, was actually present as
attesting witness when Francisco Briones executed his will in the
month of September in his (Bustilla's) house situated in the
municipality of Bao, Ambos Camarines; that Francisco Briones
knowing of the presence of notary Domingo de la Fuente in the
house, he went upstairs and announced himself; that on being asked
what he wanted, Briones stated that he wanted to execute his will;
that after Briones and the notary had talked with each other, the
former left and after a while returned bringing with him some paper;
that then Domingo de la Fuente, under the direction of Francisco
Briones, began to draft the will, which when finished was signed by
the latter in the presence of the notary, of the declarant, and of
another witness, Sixto Barrameda; that then the three witnesses
the declarant, de la Fuente, and Barrameda signed in the presence
of each other. The declarant identified the signature placed on the will
by the testator Briones and those of the other witnesses Sixto
Barrameda and Domingo dela Fuente, who all signed in the presence
of the testator himself. He stated further that the testator at that
moment was in his sound judgment and not forced to execute the
will. He identified the document Exhibit A as the will executed by
Francisco Briones and the signature of the latter as the one placed by
the testator. By agreement of both parties it was made to appear in the
record that, if the witnesses Sixto Barrameda and Domingo de la
Fuente were called, they would have testified in the same terms as
witness Gregorio Bustilla.
In view of the above, the judge rendered judgment, dated March 27,
1915, denying probate to the will Exhibit A as executed by Francisco
Briones. From the judgment, counsel for Monica Bona appealed and
prayed to be allowed to sue further as a pauper; whereupon, by order
of March 31, 1915, the judge admitted the appeal, ordered the
original records to be brought up, and reiterated his order of
December 28, 1913, declaring Bona as a pauper, for the purposes of
the appeal interposed.
The whole issue discussed by the parties and submitted for the
decision of this court resolves itself as to whether or not in the

execution of the will in question the solemnities prescribed by section

618 of Act No. 190 have been observed.
But before proceeding further it is indispensable to note that the will
in question was executed by Francisco Briones on September 16,
1911, as already stated and the order denying probate was rendered
on March 27, 1915, both dated being prior to that of Act No. 2645
amending said section 618 and promulgated on February 24, 1916,
which took effect only from July first of the last named year: so that,
in order to explain whether or not the above-mentioned will was
executed in accordance with the law then in force, the last named law
cannot be applied and the will in question should be examined in
accordance with, and under the rules of, the law in force at the time
of its execution.
The oft-repeated section 618 of Act No. 190 says:
No will, except as provided in the preceding section, shall
be valid to pass any estate, real or personal, nor charge or
affect the same, unless it be in writing and signed by the
testator, or by some other person in his presence, and by his
express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and
of each other. But the absence of such form of attestation
shall not render the will invalid if it is proven that the will
was in fact signed and attested as in this section provided.
A mere reading of the last four paragraphs or parts of the will Exhibit
A shows in a clear manner that the said will in its form and contents
expresses without shadow of doubt the will of the testator; and that in
its execution the solemnities prescribed by the above-mentioned
section 618 of Act No. 190 have been observed.
Even though Domingo de la Fuente drafted the will and intervened in
its preparation as a notary, by the order and under the express
direction of the testator, it is nevertheless true that he did it as a
witness to the execution of the said will with positive and concrete
acts, while the two other witnesses Gregorio Bustilla and Sixto
Barrameda merely attested all that appeared in the second of the four
paragraphs mentioned; for in its they certify that the foregoing
testament contains the last will of the testator Francisco Briones; that
the latter told them that before and at the time that he dictated his
will, there was no inducement nor threat by anybody; and that as he
did not know how to write the Spanish language, said testator
requested Domingo de la Fuente to write the will, and he did it as it is
now drafted, certifying also, that the testator Briones signed his will
voluntarily with his own hand, in the presence of the declarants who,
as witnesses, signed the instrument on the date expressed. Domingo
de la Fuente on his part declared that the two said witnesses formally
swore before him on the certification which precedes the said will
and, according to this testimony as shown in the records and the
testimony of the above-mentioned witnesses, the said Domingo de la
Fuente wrote and drafted the said will Exhibit A by the order and
under the direction of the testator Francisco Briones, who signed in
the presence of the witnesses, Bustilla and Barrameda and of Notary
Domingo de la Fuente, all of whom immediately signed also in the
presence of the testator, each doing it in the presence of each other.
So that, although it is not shown expressly that Domingo de la Fuente
was an attesting witness to the will, yet it cannot be denied that it was
he who wrote it by the order and under the direction of the testator;
that he was a witness to its execution from the first to its last line; and
that he was perfectly aware of the fact that all that he had written in
the document Exhibit A expresses the genuine and true will of the
testator. He saw and was present when the latter signed his will, as
also when the two witnesses Bustilla and Barrameda affixed their
signatures; said witnesses also saw and were present when Domingo
de la Fuente signed at the end of the said document.
The name of Domingo de la Fuente appears as that of a notary who
certifies as to the certainty of the will made by Francisco Briones and
of the signatures of the testator as well as of the witnesses at its end;
and as the law does not require that one of the witnesses must
necessarily be a notary, and it cannot be denied that Domingo de la
Fuente attested the execution and the signing of the will not only by

SUCCESSION. SET 2.
the testator but also by the attesting witnesses, it cannot but be
admitted that Domingo de la Fuente intervened, attested, and signed
the testament as a witness.
This is a case in which the judicial criterion should be inspired in the
sense that it is not defeated, and if the wish of the testator is so
manifest and express as in the instant case, it is not proper nor just to
invalidate the will of Francisco Briones merely because of some
small defect in form which is not essential nor of great importance,
such as the failure to state therein that Domingo de la Fuente was also
a witness to the said will when he signed it twice. As a matter of act,
he understood the contents of the will better than the two other
attesting witnesses, for he really was a witness and he attested the
execution of the will during its making until it was terminated and
signed by the testator, by the witnesses, and by himself, even though
he did it in the capacity of a notary.
The last paragraph of section 618 of Act No. 190 supplies a legal
basis to support the validity of the will in question with the conditions
for its probate because, notwithstanding the existence of such defect
merely in the form and not in the substance, the certification of
authenticity and the very text of the will show in a clear and
indubitable manner that the will Exhibit A contains the last will of the
testator, and that it was signed by the latter and attested as being true
and legitimate not only the two witnesses Bustilla and Barrameda but
also by the one who wrote it, Domingo de la Fuente, who was also a
truthful and reliable witness, even though he be called a notary
public.
The requisites established by Act No. 2645, which amended the oftrepeated section 618 cannot be required in the probate of the will
here, inasmuch as this document was executed in September, 1911,
five years before said amendatory law began to take effect (July 1,
1916), while the testator died on August 14, 1913, two years and
some months before the enforcement of the said law; and so, the only
law applicable to the present case is the provision contained in
section 618 of Act No. 190, and in accordance with the provisions of
this section, the said will should be probated; for it has been
presented to the court many months before the amendatory act went
into effect.
It is well-known that the principle that a new law shall not have
retroactive effect only governs the rights arising from acts done under
the rule of the former law; but if the right be declared for the first
time by a subsequent law it shall take effect from that time even
though it has arisen from acts subject to the former laws, provided
that it does not prejudice another acquired right of the same origin.
It is well-known that hereditary rights are not born nor does the will
produce any effect until the moment of the death of the person whose
inheritance is concerned. (Decision rendered in cassation by the
supreme court of Spain on June 24, 1897.)
In view of these facts, it follows that the judgment appealed from
should be reversed and it should be declared as we hereby declare
that the will Exhibit A has been executed in due form by Francisco
Briones on September 16, 1911, and that the said will contains and
expresses the last will and testamentary wishes of the deceased
testator. Consequently, let the records be returned to the court
wherefrom they came with a certified copy of this resolution in order
that the judge, upon petition by the proper party, may provide for the
necessary proceedings with respect to the inheritance, and the clerk
of the court may issue certified copies of the said testament; without
any special ruling as to costs. so ordered.

SUCCESSION. SET 2.
G.R. No. L-14074

November 7, 1918

In the matter of the probation of the will of Jose Riosa.

MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in the Philippine
Islands the law existing on the date of the execution of a will, or the
law existing at the death of the testator, controls.
Jose Riosa died on April 17, 1917. He left a will made in the month
of January, 1908, in which he disposed of an estate valued at more
than P35,000. The will was duly executed in accordance with the law
then in force, namely, section 618 of the Code of Civil Procedure.
The will was not executed in accordance with Act No. 2645,
amendatory of said section 618, prescribing certain additional
formalities for the signing and attestation of wills, in force on and
after July 1, 1916. In other words, the will was in writing, signed by
the testator, and attested and subscribed by three credible witnesses in
the presence of the testator and of each other; but was not signed by
the testator and the witnesses on the left margin of each and every
page, nor did the attestation state these facts. The new law, therefore,
went into effect after the making of the will and before the death of
the testator, without the testator having left a will that conforms to the
new requirements.
Section 618 of the Code of Civil Procedure reads:
No will, except as provided in the preceding section, shall
be valid to pass any estate, real or personal, nor charge or
affect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other
person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses
in the presence of the testator and of each other. The
attestation shall state the fact that the testator signed the
will, or caused it to be signed by some other person, at his
express direction, in the presence of three witnesses, and
that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of
attestation shall not render the will invalid if it is proven
that the will was in fact signed and attested as in this
section provided.
Act No. 2645 has amended section 618 of the Code of Civil
Procedure so as to make said section read as follows:
SEC. 618. Requisites of will. No will, except as provided
in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be
written in the language or dialect known by the testator and
signed by him, or by the testator's name written by some
other person in his presence, and by his express direction,
and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each, and every page thereof, on the left
margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of
the testator and of each other.
This court has heretofore held in a decision handed down by the
Chief Justice, as to a will made after the date Act No. 2645 went into

effect, that it must comply with the provisions of this law. (Caraig vs
Tatlonghari, R. G. No. 12558, dated March 23, 1918 [not published].)
The court has further held in a decision handed down by Justice
Torres, as to will executed by a testator whose death took place prior
to the operative date of Act No. 2645, that the amendatory act is
inapplicable. (Bona vs. Briones, [1918], 38 Phil., 276.) The instant
appeal presents an entirely different question. The will was execute
prior to the enactment of Act No. 2645 and the death occurred after
the enactment of this law.
There is a clear cleavage of authority among the cases and the textwriters, as to the effect of a change in the statutes prescribing the
formalities necessary to be observed in the execution of a will, when
such change is made intermediate to the execution of a will and the
death of a testator. (See generally 40 Cyc., 1076. and any textbook on
Wills, and Lane's Appeal from Probate [1889], 57 Conn., 182.) The
rule laid down by the courts in many jurisdictions is that the statutes
in force at the testator's death are controlling, and that a will not
executed in conformity with such statutes is invalid, although its
execution was sufficient at the time it was made. The reasons
assigned for applying the later statute are the following: "As until the
death of the testator the paper executed by him, expressing his
wishes, is not a will, but a mere inchoate act which may or may not
be a will, the law in force at the testator's death applies and controls
the proof of the will." (Sutton vs. Chenault [1855], 18 Ga., 1.) Were
we to accept the foregoing proposition and the reasons assigned for it,
it would logically result that the will of Jose Riosa would have to be
held invalid.
The rule prevailing in many other jurisdictions is that the validity of
the execution of a will must be tested by the statutes in force at the
time of its execution and that statutes subsequently enacted have no
retrospective effect. This doctrine is believed to be supported by the
weight of authority. It was the old English view; in Downs (or
Downing) vs. Townsend (Ambler, 280), Lord Hardwicke is reported
to have said that "the general rule as to testaments is, that the time of
the testament, and not the testator's death, is regarded." It is also the
modern view, including among other decisions one of the Supreme
Court of Vermont from which State many of the sections of the Code
if Civil Procedure of the Philippine Islands relating to wills are taken.
(Giddings vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies, the opinion by
the learned Justice Sharswood (Taylor vs.Mitchell [1868], 57 Pa. St.,
209) is regarded to be the best considered. In this opinion is found the
following:
Retrospective laws generally if not universally work
injustice, and ought to be so construed only when the
mandate of the legislature is imperative. When a testator
makes a will, formally executed according to the
requirements of the law existing at the time of its
execution, it would unjustly disappoint his lawful right of
disposition to apply to it a rule subsequently enacted,
though before his death.
While it is true that every one is presumed to know the law,
the maxim in fact is inapplicable to such a case; for he
would have an equal right to presume that no new law
would affect his past act, and rest satisfied in security on
that presumption. . . . It is true, that every will is
ambulatory until the death of the testator, and the
disposition made by it does not actually take effect until
then. General words apply to the property of which the
testator dies possessed, and he retains the power of
revocation as long as he lives. The act of bequeathing or
devising, however, takes place when the will is executed,
though to go into effect at a future time.
A third view, somewhat larger in conception than the preceding one,
finding support in the States of Alabama and New York, is that
statutes relating to the execution of wills, when they increase the
necessary formalities, should be construed so as not to impair the
validity of a will already made and, when they lessen the formalities

SUCCESSION. SET 2.
required, should be construed so as to aid wills defectively executed
according to the law in force at the time of their making
(Hoffman vs. Hoffman, [1855], 26 Ala., 535; Price vs. Brown, 1
Bradf., Surr. N.Y., 252.)
This court is given the opportunity to choose between the three rules
above described. Our selection, under such circumstances, should
naturally depend more on reason than on technicality. Above all, we
cannot lose sight of the fact that the testator has provided in detail for
the disposition of his property and that his desires should be
respected by the courts. Justice is a powerful pleader for the second
and third rules on the subject.
The plausible reasoning of the authorities which back the first
proposition is, we think, fallacious. The act of bequeathing or
devising is something more than inchoate or ambulatory. In reality, it
becomes a completed act when the will is executed and attested
according to the law, although it does not take effect on the property
until a future time.lawphil.net
It is, of course, a general rule of statutory construction, as this court
has said, that "all statutes are to be construed as having only a
prospective operation unless the purpose and intention of the
Legislature to give them a retrospective effect is expressly declared
or is necessarily implied from the language used. In every case of
doubt, the doubt must be resolved against the restrospective effect."
(Montilla vs. Corporacion de PP. Agustinos [1913], 24 Phil., 220. See
also Chew Heong vs. U.S. [1884], 112 U.S., 536; U.S. vs American
Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as found in the
Civil Code, is corroborative; article 3 thereof provides that "laws
shall not have a retroactive effect, unless therein otherwise
prescribed." The language of Act No. 2645 gives no indication of
retrospective effect. Such, likewise, has been the uniform tendency of
the Supreme Court of the Philippine Islands on cases having special
application to testamentary succession. (Abello vs. Kock de
Monaterio [1904], 3 Phil., 558; Timbol vs. Manalo [1906], 6 Phil.,
254; Bona vs. Briones, supra; In the Matter of the Probation of the
Will of Bibiana Diquia [1918], R. G. No. 13176, 1 concerning the
language of the Will. See also section 617, Code of Civil Procedure.)
The strongest argument against our accepting the first two rules
comes out of section 634 of the Code of Civil Procedure which, in
negative terms, provides that a will shall be disallowed in either of
five cases, the first being "if not executed and attested as in this Act
provided." Act No. 2645 has, of course, become part and parcel of the
Code of Civil Procedure. The will in question is admittedly not
executed and attested as provided by the Code of Civil Procedure as
amended. Nevertheless, it is proper to observe that the general
principle in the law of wills inserts itself even within the provisions
of said section 634. Our statute announces a positive rule for the
transference of property which must be complied with as completed
act at the time of the execution, so far as the act of the testator is
concerned, as to all testaments made subsequent to the enactment of
Act No. 2645, but is not effective as to testaments made antecedent to
that date.
To answer the question with which we began this decision, we adopt
as our own the second rule, particularly as established by the
Supreme Court of Pennsylvania. The will of Jose Riosa is valid.
The order of the Court of First Instance for the Province of Albay of
December 29, 1917, disallowing the will of Jose Riosa, is reversed,
and the record shall be returned to the lower court with direction to
admit the said will to probate, without special findings as to costs. So
ordered.

SUCCESSION. SET 2.
G.R. No. 4445

September 18, 1909

CATALINA BUGNAO, proponent-appellee,

vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First Instance of
Oriental Negros, admitting to probate a document purporting to be
the last will and testament of Domingo Ubag, deceased. The
instrument was propounded by his widow, Catalina Bugnao, the sole
beneficiary thereunder, and probate was contested by the appellants,
who are brothers and sisters of the deceased, and who would be
entitled to share in the distribution of his estate, if probate were
denied, as it appears that the deceased left no heirs in the direct
ascending or descending line.
Appellants contend that the evidence of record is not sufficient to
establish the execution of the alleged will in the manner and form
prescribed in section 618 of the Code of Civil Procedure; and that at
the time when it is alleged that the will was executed, Ubag was not
of sound mind and memory, and was physically and mentally
incapable of making a will.

occasion and the other witness might recall the latter, although
neither witness could recall both. But, however this may have been,
we do not think that a slight lapse of memory on the part of one or the
other witness, as to the precise details of an unimportant incident, to
which his attention may not have been particularly directed, is
sufficient to raise a doubt as to the veracity of these witnesses, or as
to the truth and accuracy of their recollection of the fact of the
execution of the instrument. Of course, a number of contradictions in
the testimony of alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or even a single
contradiction as to a particular incident, where the incident was of
such a nature that the intention of any person who was present must
have been directed to it, and where the contradictory statements in
regard to it are so clear and explicit as to negative the possibility or
probability of mistake, might well be sufficient to justify the
conclusion that the witnesses could not possibly have been present,
together, at the time when it is alleged the will was executed; but the
apparent contradictions in the testimony of the witnesses in the case
at bar fall far short of raising a doubt a to their veracity, and on the
other hand their testimony as a whole gives such clear, explicit, and
detailed account of all that occurred, and is so convincing and
altogether satisfactory that we have no doubt that the trial judge who
heard them testify properly accepted their testimony as worthy of
entire confidence and belief.

The instrument propounded for probate purports to be the last will

and testament of Domingo Ubag, signed by him in the presence of
three subscribing and attesting witnesses, and appears upon its face to
have been duly executed in accordance with the provisions of the
Code of Civil Procedure touching the making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy and Catalino
Mario, testified in support of the will, the latter being the justice of
the peace of the municipality wherein it was executed; and their
testimony was corroborated in all important details by the testimony
of the proponent herself, who was present when the will was made. It
does not appear from the record why the third subscribing witness
was not called; but since counsel for the contestants makes no
comment upon his absence, we think it may safely be inferred that
there was some good and sufficient reason therefore. In passing,
however, it may be well to observe that, when because of death,
sickness, absence, or for any other reason, it is not practicable to call
to the witness stand all the subscribing witnesses to a will offered for
probate, the reason for the absence of any of these witnesses should
be made to appear of record, and this especially in cases such as the
one at bar, wherein there is a contests.
The subscribing witnesses gave full and detailed accounts of the
execution of the will and swore that the testator, at the time of its
execution, was of sound mind and memory, and in their presence
attached his signature thereto as his last will and testament, and that
in his presence and in the presence of each other, they as well as the
third subscribing witness. Despite the searching and exhaustive crossexamination to which they were subjected, counsel for appellants
could point to no flaw in their testimony save an alleged
contradiction as to a single incident which occurred at or about the
time when the will was executed a contradiction, however, which we
think is more apparent than real. One of the witnesses stated that the
deceased sat up in bed and signed his name to the will, and that after
its execution food was given him by his wife; while the other testified
that he was assisted into a sitting position, and was given something
to eat before he signed his name. We think the evidence discloses that
his wife aided the sick man to sit up in bed at the time when he
signed his name to the instrument, and that he was given nourishment
while he was in that position, but it is not quite clear whether this was
immediately before or after, or both before and after he attached his
signature to the will. To say that the sick man sat up or raised himself
up in bed is not necessarily in conflict with the fact that he received
assistance in doing so; and it is not at all improbable or impossible
that nourishment might have been given to him both before and after
signing the will, and that one witness might remember the former

SUCCESSION. SET 2.
The contestants put upon the stand four witnesses for the purpose of
proving that at the time and on the occasion when the subscribing
witnesses testified that the will was executed, these witnesses were
not in the house with the testator, and that the alleged testator was at
that time in such physical and mental condition that it was impossible
for him to have made a will. Two of these witnesses, upon crossexamination, admitted that they were not in the house at or between
the hours of four and six in the afternoon of the day on which the will
is alleged to have been made, this being the time at which the
witnesses in support of the will testified that it was executed. Of the
other witnesses, one is a contestant of the will, Macario Ubag, a
brother of the testator, and the other, Canuto Sinoy, his close relative.
These witnesses swore that they were in the house of the deceased,
where he was lying ill, at or about the time when it is alleged that the
will was executed, and that at that time the alleged subscribing
witnesses were not in the house, and the alleged testator was so sick
that he was unable to speak, to understand, or to make himself
understood, and that he was wholly incapacitated to make a will. But
the testimony of Macario Ubag is in our opinion wholly unworthy of
credence. In addition to his manifest interest in the result of the
investigation, it clearly discloses a fixed and settled purpose to
overthrow the will at all costs, and to that end an utter disregard of
the truth, and readiness to swear to any fact which he imagined would
aid in securing his object. An admittedly genuine and authentic
signature of the deceased was introduced in evidence for comparison
with the signature attached to the will, but this witness in his anxiety
to deny the genuineness of the signature of his brother to the will,
promptly and positively swore that the admittedly genuine signature
was not his brother's signature, and only corrected his erroneous
statement in response to a somewhat suggestive question by his
attorney which evidently gave him to understand that his former
answer was likely to prejudice his own cause. On cross-examination,
he was forced to admit that because his brother and his brother's wife
(in those favor the will was made) were Aglipayanos, he and his other
brothers and sisters had not visited them for many months prior to the
one particular occasion as to which testified; and he admitted further,
that, although he lived near at hand, at no time thereafter did he or
any of the other members of his family visit their dying brother, and
that they did not even attend the funeral. If the testimony of this
witness could be accepted as true, it would be a remarkable
coincidence indeed, that the subscribing witnesses to the alleged will
should have falsely pretended to have joined in its execution on the
very day, and at the precise hour, when this interested witness
happened to pay his only visit to his brother during his last illness, so
that the testimony of this witness would furnish conclusive evidence
in support of the allegations of the contestants that the alleged will
was not executed at the time and place or in the manner and form
alleged by the subscribing witnesses. We do not think that the
testimony of this witness nor any of the other witnesses for the
contestants is sufficient to raise even a doubt as to the truth of the
testimony of the subscribing witnesses as to the fact of the execution
of the will, or as to the manner and from in which it was executed.
In the course of the proceedings, an admittedly genuine signature of
the deceased was introduced in evidence, and upon a comparison of
this signature with the signature attached to the instrument in
question, we are wholly of the opinion of the trial judge, who held in
this connection as follows:
No expert evidence has been adduced with regard to these
two signatures, and the presiding judge of this court does
not claim to possess any special expert knowledge in the
matter of signatures; nevertheless, the court has compared
these two signatures, and does not find that any material
differences exists between the same. It is true that the
signature which appears in the document offered for
authentication discloses that at the time of writing the
subscriber was more deliberate in his movements, but two
facts must be acknowledge: First, that the testator was
seriously ill, and the other fact, that for some reason which
is not stated the testator was unable to see, and was a
person who was not in the habit of signing his name every
day.
These facts should sufficiently explain whatever difference
may exist between the two signatures, but the court finds
that the principal strokes in the two signatures are identical.

That the testator was mentally capable of making the will is in our
opinion fully established by the testimony of the subscribing
witnesses who swore positively that, at the time of its execution, he
was of sound mind and memory. It is true that their testimony
discloses the fact that he was at that time extremely ill, in an
advanced stage of tuberculosis complicated with severe intermittent
attacks of asthma; that he was too sick to rise unaided from his bed;
that he needed assistance even to rise himself to a sitting position;
and that during the paroxysms of asthma to which he was subject he
could not speak; but all this evidence of physical weakness in no wise
establishes his mental incapacity or a lack of testamentary capacity,
and indeed the evidence of the subscribing witnesses as to the aid
furnished them by the testator in preparing the will, and his clear
recollection of the boundaries and physical description of the various
parcels of land set out therein, taken together with the fact that he was
able to give to the person who wrote the will clear and explicit
instructions as to his desires touching the disposition of his property,
is strong evidence of his testamentary capacity.
Counsel for appellant suggests that the fact that the alleged will
leaves all the property of the testator to his widow, and wholly fails to
make any provision for his brothers or sisters, indicates a lack of
testamentary capacity and undue influence; and because of the
inherent improbability that a man would make so unnatural and
unreasonable a will, they contend that this fact indirectly corroborates
their contention that the deceased never did in fact execute the will.
But when it is considered that the deceased at the time of his death
had no heirs in the ascending or descending line; that a bitter family
quarrel had long separated him from his brothers and sisters, who
declined to have any relations with the testator because he and his
wife were adherents of the Aglipayano Church; and that this quarrel
was so bitter that none of his brothers or sisters, although some of
them lived in the vicinity, were present at the time of his death or
attended his funeral; we think the fact that the deceased desired to
leave and did leave all of his property to his widow and made no
provision for his brothers and sisters, who themselves were grown
men and women, by no means tends to disclose either an unsound
mind or the presence of undue influence on the part of his wife, or in
any wise corroborates contestants' allegation that the will never was
executed.
It has been said that "the difficulty of stating standards or tests by
which to determine the degree of mental capacity of a particular
person has been everywhere recognized, and grows out of the
inherent impossibility of measuring mental capacity, or its
impairment by disease or other causes" (Greene vs. Greene, 145 III.,
264, 276); and that "it is probable that no court has ever attempted to
lay down any definite rule in respect to the exact amount of mental
capacity requisite for the making of a valid will, without appreciating
the difficulty of the undertaking" (Trish vs.Newell, 62 III., 196, 203).
Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that
degree of mental aberration generally known as insanity or idiocy,
there are numberless degrees of mental capacity or incapacity, and
while on one hand it has been held that "mere weakness of mind, or
partial imbecility from the disease of body, or from age, will not
render a person incapable of making a will, a weak or feeble minded
person may make a valid will, provided he has understanding
memory sufficient to enable him to know what he is about, and how
or to whom he is disposing of his property" (Lodge vs. Lodge, 2
Houst. (Del.), 418); that, "To constitute a sound and disposing mind,
it is not necessary that the mind should be unbroken or unimpaired,
unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq.,
563); that "it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the
highest degree. . . . Few indeed would be the wills confirmed, if this
is correct. Pain, sickness, debility of body, from age or infirmity,
would, according to its violence or duration, in a greater or less
degree, break in upon, weaken, or derange the mind, but the
derangement must be such as deprives him of the rational faculties
common to man" (Den. vs. Vancleve, 5 N. J. L.,680); and, that
"Sound mind does not mean a perfectly balanced mind. The question
of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. & D.,
64; 42 L. J. P., 25); on the other hand, it has been held that
"testamentary incapacity does not necessarily require that a person
shall actually be insane or of an unsound mind. Weakness of intellect,

SUCCESSION. SET 2.
whether it arises from extreme old age from disease, or great bodily
infirmities or suffering, or from all these combined, may render the
testator incapable of making a valid will, providing such weakness
really disqualifies her from knowing or appreciating the nature,
effects, or consequences of the act she is engaged in"
(Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).
But for the purposes of this decision it is not necessary for us to
attempt to lay down a definition of testamentary capacity which will
cover all possible cases which may present themselves, because, as
will be seen from what has already been said, the testator was, at the
time of making the instrument under consideration, endowed with all
the elements of mental capacity set out in the following definition of
testamentary capacity which has been frequently announced in courts
of last resort in England and the United States; and while is some
cases testamentary capacity has been held to exist in the absence of
proof of some of these elements, there can be no question that, in the
absence of proof of very exceptional circumstances, proof of the
existence of all these elements in sufficient to establish the existence
of testamentary capacity.
Testamentary capacity is the capacity to comprehend the
nature of the transaction which the testator is engaged at the
time, to recollect the property to be disposed of and the
person who would naturally be supposed to have claims
upon the testator, and to comprehend the manner in which
the instrument will distribute his property among the
objects of his bounty.
(Cf. large array of cases cited in support of this definition in the
Encyclopedia of Law, vol. 23, p. 71, second edition.)
In our opinion, the evidence of record establishes in a strikingly
conclusive manner the execution of the instrument propounded as the
last will and testament of the deceased; that it was made in strict
conformity with the requisites prescribed by law; and that, at the time
of its execution, the deceased was of sound mind and memory, and
executed the instrument of his own free will and accord.

SUCCESSION. SET 2.
G.R. No. L-6801

March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee,

vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First Instance of the
Province of Bataan, admitting to probate a document which was
offered as the last will and testament of Pioquinto Paguio y Pizarro.
The will purports to have been executed in the pueblo of Pilar,
Province of Bataan, on the 19th day of April, 1908. The testator died
on the 28th of September, 1909, a year and five months following the
date of the execution of the will. The will was propounded by the
executrix, Juliana Bagtas, widow of the decedent, and the opponents
are a son and several grandchildren by a former marriage, the latter
being the children of a deceased daughter.
The basis of the opposition to the probation of the will is that the
same was not executed according to the formalities and requirements
of the law touching wills, and further that the testator was not in the
full of enjoyment and use of his mental faculties and was without the
mental capacity necessary to execute a valid will.
The record shows that the testator, Pioquinto Paguio, for some
fourteen of fifteen years prior to the time of his death suffered from a
paralysis of the left side of his body; that a few years prior to his
death his hearing became impaired and that he lost the power of
speech. Owing to the paralysis of certain muscles his head fell to one
side, and saliva ran from his mouth. He retained the use of his right
hand, however, and was able to write fairly well. Through the
medium of signs he was able to indicate his wishes to his wife and to
other members of his family.
At the time of the execution of the will there were present the four
testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro
Paguio, and attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently
their testimony was not available upon the trial of the case in the
lower court. The other three testamentary witnesses and the witness
Florentino Ramos testified as to the manner in which the will was
executed. According to the uncontroverted testimony of these
witnesses the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper notes and
items relating to the disposition of his property, and these notes were
in turn delivered to Seor Marco, who transcribed them and put them
in form. The witnesses testify that the pieces of paper upon which the
notes were written are delivered to attorney by the testator; that the
attorney read them to the testator asking if they were his testamentary
dispositions; that the testator assented each time with an affirmative
movement of his head; that after the will as a whole had been thus
written by the attorney, it was read in a loud voice in the presence of
the testator and the witnesses; that Seor Marco gave the document to
the testator; that the latter, after looking over it, signed it in the
presence of the four subscribing witnesses; and that they in turn
signed it in the presence of the testator and each other.
These are the facts of record with reference to the execution of the
will and we are in perfect accord with the judgment of the lower
court that the formalities of the Code of Civil Procedure have been
fully complied with.
This brings us now to a consideration of appellants' second
assignment of error, viz, the testator's alleged mental incapacity at the
time of the execution of the will. Upon this point considerable
evidence was adduced at the trial. One of the attesting witnesses
testified that at the time of the execution of the will the testator was in
his right mind, and that although he was seriously ill, he indicated by

movements of his head what his wishes were. Another of the attesting
witnesses stated that he was not able to say whether decedent had the
full use of his mental faculties or not, because he had been ill for
some years, and that he (the witnesses) was not a physician. The
other subscribing witness, Pedro Paguio, testified in the lower court
as a witness for the opponents. He was unable to state whether or not
the will was the wish of the testator. The only reasons he gave for his
statement were the infirmity and advanced age of the testator and the
fact that he was unable to speak. The witness stated that the testator
signed the will, and he verified his own signature as a subscribing
witness.
Florentino Ramos, although not an attesting witness, stated that he
was present when the will was executed and his testimony was
cumulative in corroboration of the manner in which the will was
executed and as to the fact that the testator signed the will. This
witness also stated that he had frequently transacted matters of
business for the decedent and had written letters and made
inventories of his property at his request, and that immediately before
and after the execution of the will he had performed offices of his
character. He stated that the decedent was able to communicate his
thoughts by writing. The testimony of this witness clearly indicates
the presence of mental capacity on the part of the testator. Among
other witnesses for the opponents were two physician, Doctor Basa
and Doctor Viado. Doctor Basa testified that he had attended the
testator some four or five years prior to his death and that the latter
had suffered from a cerebral congestion from which the paralysis
resulted. The following question was propounded to Doctor Basa:
Q.
Referring to mental condition in which you found
him the last time you attended him, do you think he was in
his right mind?
A.
I can not say exactly whether he was in his right
mind, but I noted some mental disorder, because when I
spoke to him he did not answer me.
Doctor Basa testified at more length, but the substance of his
testimony is that the testator had suffered a paralysis and that he had
noticed some mental disorder. He does not say that the testator was
not in his right mind at the time of the execution of the will, nor does
he give it at his opinion that he was without the necessary mental
capacity to make a valid will. He did not state in what way this
mental disorder had manifested itself other than that he had noticed
that the testator did not reply to him on one occasion when he visited
him.
Doctor Viado, the other physician, have never seen the testator, but
his answer was in reply to a hypothetical question as to what be the
mental condition of a person who was 79 years old and who had
suffered from a malady such as the testator was supposed to have had
according to the testimony of Doctor Basa, whose testimony Doctor
Viado had heard. He replied and discussed at some length the
symptoms and consequences of the decease from which the testator
had suffered; he read in support of his statements from a work by a
German Physician, Dr. Herman Eichost. In answer, however, to a
direct question, he stated that he would be unable to certify to the
mental condition of a person who was suffering from such a disease.
We do not think that the testimony of these two physicians in any
way strengthens the contention of the appellants. Their testimony
only confirms the fact that the testator had been for a number of years
prior to his death afflicted with paralysis, in consequence of which
his physician and mental strength was greatly impaired. Neither of
them attempted to state what was the mental condition of the testator
at the time he executed the will in question. There can be no doubt
that the testator's infirmities were of a very serious character, and it is
quite evident that his mind was not as active as it had been in the
earlier years of his life. However, we can not include from this that he
wanting in the necessary mental capacity to dispose of his property
by will.
The courts have been called upon frequently to nullify wills executed
under such circumstances, but the weight of the authority is in

10

SUCCESSION. SET 2.
support if the principle that it is only when those seeking to
overthrow the will have clearly established the charge of mental
incapacity that the courts will intervene to set aside a testamentary
document of this character. In the case of Bugnao vs. Ubag (14 Phil.
Rep., 163), the question of testamentary capacity was discussed by
this court. The numerous citations there given from the decisions of
the United States courts are especially applicable to the case at bar
and have our approval. In this jurisdiction the presumption of law is
in favor of the mental capacity of the testator and the burden is upon
the contestants of the will to prove the lack of testamentary capacity.
(In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the
matter of the will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez,
1 Phil. Rep., 689.)

his brain he was affected with senile cataract causing total blindness.
He became filthy and obscene in his habits, although formerly he was
observant of the properties of life. The court, in commenting upon the
case, said:

The rule of law relating to the presumption of mental soundness is

well established, and the testator in the case at bar never having been
adjudged insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent upon the
opponents to overcome this legal presumption by proper evidence.
This we think they have failed to do. There are many cases and
authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by
age and disease do not render a person incapable of making a will.
The law does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental powers in
order to execute a valid will. If such were the legal standard, few
indeed would be the number of wills that could meet such exacting
requirements. The authorities, both medical and legal, are universal in
statement that the question of mental capacity is one of degree, and
that there are many gradations from the highest degree of mental
soundness to the lowest conditions of diseased mentality which are
denominated as insanity and idiocy.

Dougal (the testator) had lived over one hundred years

before he made the will, and his physical and mental
weakness and defective memory were in striking contrast
with their strength in the meridian of his life. He was blind;
not deaf, but hearing impaired; his mind acted slowly, he
was forgetful or recent events, especially of names, and
repeated questions in conversation; and sometimes, when
aroused for sleep or slumber, would seem bewildered. It is
not singular that some of those who had known him when
he was remarkable for vigor and intelligence, are of the
opinion that his reason was so far gone that he was
incapable of making a will, although they never heard him
utter an irrational expression.

The right to dispose of property by testamentary disposition is as

sacred as any other right which a person may exercise and this right
should not be nullified unless mental incapacity is established in a
positive and conclusive manner. In discussing the question of
testamentary capacity, it is stated in volume 28, 70, of the American
and English Encyclopedia of Law, that
Contrary to the very prevalent lay impression, perfect
soundness of mind is not essential to testamentary capacity.
A testator may be afflicted with a variety of mental
weaknesses, disorders, or peculiarities and still be capable
in law of executing a valid will. (See the numerous cases
there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on
Insanity, section 365, and quoted with approval inCampbell vs.
Campbell (130 Ill., 466), as follows:

Neither age, nor sickness, nor extreme distress, nor debility

of body will affect the capacity to make a will, if sufficient
intelligence remains. The failure of memory is not
sufficient to create the incapacity, unless it be total, or
extend to his immediate family or property. . . .
xxx

xxx

xxx

In the above case the will was sustained. In the case at bar we might
draw the same contrast as was pictured by the court in the case just
quoted. The striking change in the physical and mental vigor of the
testator during the last years of his life may have led some of those
who knew him in his earlier days to entertain doubts as to his mental
capacity to make a will, yet we think that the statements of the
witnesses to the execution of the will and statements of the conduct
of the testator at that time all indicate that he unquestionably had
mental capacity and that he exercised it on this occasion. At the time
of the execution of the will it does not appear that his conduct was
irrational in any particular. He seems to have comprehended clearly
what the nature of the business was in which he was engaged. The
evidence show that the writing and execution of the will occupied a
period several hours and that the testator was present during all this
time, taking an active part in all the proceedings. Again, the will in
the case at bar is perfectly reasonable and its dispositions are those of
a rational person.
For the reasons above stated, the order probating the will should be
and the same is hereby affirmed, with costs of this instance against
the appellants.

To constitute a sound and disposing mind, it is not

necessary that the mind shall be wholly unbroken,
unimpaired, or unshattered by disease or otherwise, or that
the testator should be in the full possession of his reasoning
faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of
memory possessed by the testator, as, had he a disposing
memory? Was he able to remember the property he was
about to bequeath, the manner of disturbing it, and the
objects of his bounty? In a word, were his mind and
memory sufficiently sound to enable him to know and
understand the business in which he was engaged at the
time when he executed his will. (See authorities there
cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared
upon the trial of the case: The testator died at the age of nearly 102
years. In his early years he was an intelligent and well informed man.
About seven years prior to his death he suffered a paralytic stroke and
from that time his mind and memory were mush enfeebled. He
became very dull of hearing and in consequence of the shrinking of

11

SUCCESSION. SET 2.
[G.R. No. 6650. December 5, 1913. ]

as in the case at bar, was assailed at the commencement of the suit.

SANTIAGO GALVEZ, Petitioner-Appellant, v. CANUTA

GALVEZ, Opponent-Appellee.

After due trial the judgment aforementioned was rendered, from

which an appeal was entered by counsel for the petitioner, Santiago
Galvez.

Eugenio Paguia, for Appellant.

Antonio Constantino, for Appellee.
SYLLABUS
1. WILLS; MENTAL CAPACITY OF THE TESTATOR. In order
to hold that a testator, as the result of cholera, was not of sound mind
and did not have full knowledge of his acts and was incapable of
executing a valid will, it is indispensable that the proceedings
disclose conclusive proof of his mental incapacity and of his lack of
reason and judgment at the time he executed his will in due form. In
this case, aside from the evidence by the witnesses who testified that
the mental faculties of the testator were unimpaired, the contents of
the will, and the desire manifested by the latter to rectify an error he
incurred in the execution of his first will, show that the testator was
of sound mind and perfectly aware of his duties with respect to the
legal, inviolable rights of his daughter and sole heir.
2. ID.; ID.; PHYSICIANS TESTIMONY BASED ON A GENERAL
RULE. Statements by a physician who did not see or examine the
testator at the time the latter was making his will, based on the
condition and mental state of a cholera patient in ordinary cases and
in the regular course of the disease, cannot serve as a ground for
declaring the testator incompetent when, notified of an error incurred
by him in his firsts will executed a few hours before, and exhibited in
court, he declared his desire to correct the same by executing a
second will; inasmuch as the testimony of the subscribing witnesses
and of the person who drew up the document, shows that the mental
and physical condition of the testator was an exception to the general
rule enunciated by the said physician, since the patient demonstrated
that he had sufficient moral energy and clear intelligence, in spite of
the inroads made by the disease, to have been able to execute his last
will and testament in accordance with the requirements of the law.

DECISION

TORRES, J. :

This is appeal was raised by counsel for Santiago Galvez from the
judgment of October 25, 1910, whereby the Honorable Simplicio del
Rasorio, judge, denied the petition presented by the said Galvez for
the probate of the will, Exhibit B, and appointed as adminsitratix of
the testators estate, the latters only legitimate daughter, Canuta
Galvez, under condition that she furnish bond in the sum of P2,000
for the faithful discharged of the duties of her office.
Counsel for Santiago Galvez petitioned the Court of First Instance of
Bulacan for the probate of the will which it was alleged Victor
executed in the dialect of the province, on August 12, 1910, in
presence of the witnesses Juan Dimanlig, J. Leoquinco, and Nazaria
Galves. This instrument appears also to have been signed by the
witness Lorenzo Galvez, below the name and surname of the testator.
(p. 3, B. of E., translated into Spanish on p.5.)
Further on in the same record, pages 6 to 7, there appears another will
written in Tagalog and executed on the same date by Victor Galvez in
presence of the witnesses Cirilo Paguia, Florentino Sison, and Juan
Mendoza.
In the course of the proceedings various witnesses were examined by
the petitioner and by the respondent, Canuta Galvez, the only
daughter of the alleged testator, and the attorney Antonio Constantino
stated that he waived the right to present evidence and acquiesced in
the petition made by Santiago Galvez for the probate of the will, in
view of a transaction entered into by the parties; but the court did not
accept the compromise, on the ground that it is improper to hold that
a will is the faithful expression of the last wishes of a decedent, upon
the mere fact of the parties petitioning to that effect, when such will,

This case deals with the probate of the second will executed by Victor
Galvez on August 12, 1910, and signed in his presence by the
witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, and, as
the testator was no longer able to sign on account of his sickness,
Lorenzo Galvez, at his request, affixed his own signature to the
instrument, for him and below his written name. This will, written in
Tagalog and translated into Spanish, is marked as Exhibit B and is
found on pages 3 and 5 of the bill of exceptions.
The other will, written in Tagalog and marked Exhibit A, was
presented during the proceedings; it was the first one the testator
executed on the same date, and, for the purpose of correcting an error
contained in this first will, he executed another will, the second,
which
is
the
one
exhibited
for
probate.
Notwithstanding the opposition by Canuta Galvez, the testators
daughter, who alleged that her father, owing to his very serious
sickness with cholera, lacked the intellectual capacity and clear
judgment requisite for making a will, and notwithstanding her
testimony adduced in corroboration of her brief, the record
sufficiently proved the contrary; the subscribing witnesses to the will
affirmed under oath that they were present when Victor Galvez, then
such in his house, stated to them that the document read before them
by Lorenzo Galvez contained his last will and testament, and that, as
the testator was no longer able to sign, he charged his nephew
Lorenzo to do so in his stead, which the latter did by affixing his own
signature to the document, after having written at the foot of the same
the name and surname of the testator, Victor Galvez, who, as these
witnesses observed, was of sound mind and in the full enjoyment of
his mental faculties; he talked intelligently and with perfect
knowledge of what was taking place. They further testified that they
all, including the said Lorenzo Galvez, signed the will in the presence
of the testator, Victor Galvez, who was at the time lying on his bed.
In order to hold that Victor Galvez, on account of serious sickness,
was not then of sound mind and did not have full knowledge of his
acts and, therefore, was incapable to execute a will, it is necessary
that the proceedings disclose conclusive proof of his mental
incapacity and of his evident lack of reason and judgment at the time
he executed his will in the presence of the witnesses whose signatures
appear at the foot thereof, for these witnesses positively affirmed that
Victor Galvez, on executing his will, showed that he was in full
possession of his intellectual faculties and was perfectly cognizant of
his
acts.
The physician Dr. Vicente de Jesus, in his testimony, referred to the
effects and results of cholera on a patient in ordinary cases and in the
regular course of this disease; but his statements, taken in general,
cannot, in the present suit, serve as a ground upon which to predicate
incapacity, for the reason that he did not examine Victor Galvez, nor
did he even see him between the hours of 12 in the morning and 3 in
the afternoon of the 12th of August, 1910, during which period the
testator ordered his will drawn up and the attesting witnesses signed
it, Galvez having died at about 6 oclock that same afternoon. It may
be true that cholera patients do, in the majority of cases, become
incapacitated in the manner described by the witnesses; but there may
be exceptions to the general rule, and to judge from the testimony of
the witnesses who saw and communicated with the patient Victor
Galvez at the time he executed his will, his physical and mental
condition mush have been an exception, since he demonstrated that
he had sufficient energy and clear intelligence to execute his last will
in
accordance
with
the
requirements
of
the
law.
Besides the attestation of the aforesaid subscribing witnesses, the
contents of the will and the testators positive determination to rectify
the error he incurred in the execution of this first will, show that
Victor Galvez was in his sound mind and was perfectly aware of his
duties in respect to the legal, inviolable rights of his daughter and
sole
heir,
Canuta
Galvez.
Inasmuch as, in the drafting and execution of the second will (Exhibit
B), signed in the name of the testator by Lorenzo Galvez and the

12

SUCCESSION. SET 2.
witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, the
formalities prescribed by section 618 of the Code of Civil Procedure
were observed, for the testators name appears written at the foot of
the will and under this name Lorenzo Galvez signed by direction of
the testator himself, and the instrument was also signed by the
attesting witnesses before mentioned who affirmed that they heard
and attested the dispositions made by the testator and witnessed the
reading of the will, that they were present when the said Lorenzo
Galvez signed the will in the name of the testator and that they signed
it in the presence of all the persons assembled in the latters house,
the conclusion is inevitable that Victor Galvez, in executing his will,
did so with a sound mind and the full use of his mental faculties;
therefore,
the
will
must
be
admitted
to
probate.
For the foregoing reasons, with a reversal of the judgment appealed
from in so far as it denies the probate of the said will, we hereby hold
that the same was duly executed by Victor Galvez and expresses his
last wishes, and we affirm the rest of the said judgment, with respect
to the appointment, as administratrix, of Canuta Galvez, the testators
daughter and sole heir.

13

SUCCESSION. SET 2.
G.R. No. L-24569

February 26, 1926

MANUEL TORRES, petitioner-appellant and

LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.

The usual oral argument has been had. The court must scale this
mountains of evidence more or less relevant and of argument intense
and prolific to discover the fertile valleys of fact and principle.

Araneta & Zaragoza for appellant.

Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.

The topics suggested by the assignments of error Testamentary

Capacity and Undue Influence will be taken up separately and in
order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and
second to make findings of law and the law by rendering judgment.

MALCOLM, J.:

I. TESTAMENTARY CAPACITY

This case concerns the probate of the alleged will of the late Tomas
Rodriguez y Lopez.

A. Facts. For a long time prior to October, 1923, Tomas

Rodriguez was in feeble health. His breakdown was undoubtedly due
to organic weakness, to advancing years and to an accident which
occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his
initiative, Tomas Rodriguez designated Vicente F. Lopez as the
administrator of his property (Exhibit 7).

Tomas Rodriguez died in the City of Manila Philippine Islands. On

February 25, 1924, leaving a considerable estate. Shortly thereafter
Manuel Torres, one of the executors named in the will asked that the
will of Rodriguez be allowed. Opposition was entered by Margarita
Lopez, the first cousin of the deceased on the grounds: (1) That the
testator lacked mental capacity because at the time of senile
dementia and was under guardianship; (2) that undue influence had
been exercised by the persons benefited in the document in
conjunction with others who acted in their behalf; and (3) that the
signature of Tomas Rodriguez to the document was obtained through
fraud and deceit. After a prolonged trial judgment was rendered
denying the legalization of the will. In the decision of the trial judge
appeared, among others, these findings:
All this evidence taken together with the circumstances that
before and at the time Tomas Rodriguez was caused to sign
the supposed will Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition
wherein he was declared physically and mentally
incapacitated to take care of himself and manage his estate
shows in a clear and conclusive manner that at the time of
signing the supposed will of Tomas Rodriguez did not
possess such mental capacity as was necessary to be able
him to dispose of his property by the supposed will.
But even supposing as contended by petitioner's counsel
that Tomas Rodriguez was at the time of execution of the
will, competent to make a will, the court is of the opinion
that the will cannot be probated for it appears from the
declaration of the attesting witness Elias Bonoan that when
the legatee Luz Lopez presented the supposed will, Exhibit
A, to Tomas Rodriguez, she told him to sign said Exhibit A
because it was a document relative to the complaint against
one Castito, which Exhibit 4, then pending in the justice of
the peace court, and for the further reason that said Tomas
Rodriguez was then under guardianship, due to his being
mentally and physically incapacitated and therefore unable
to manage his property and take care of himself. It must
also be taken into account that Tomas Rodriguez was an old
man 76 years of age, and was sick in the hospital when his
signature to the supposed will was obtained. All of this
shows that the signature of Tomas Rodriguez appearing in
the will was obtained through fraudulent and deceitful
representations of those who were interested in it. (Record
on Appeal, p. 23)

On October 22, 1923, Margarita Lopez petitioned the Court of First

Instance of Manila to name a guardian for Tomas Rodriguez because
of his age and pathological state. This petition was opposed by
Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for
the reason that while Rodriguez was far from strong on account of his
years, he was yet capable of looking after his property with the
assistance of his administrator, Vicente F. Lopez. The deposition of
Tomas Rodriguez was taken and a perusal of the same shows that he
was able to answer nearly all of the questions propounded
intelligently (Exhibit 5-g). A trial had at which considerable oral
testimony for the petitioner was received. At the conclusion of the
hearing, an order was issued by the presiding judge, declaring Tomas
Rodriguez incapacitated to take care of himself and to manage his
property and naming Vicente F. Lopez as his guardian. (Exhibit 37).
Inasmuch as counsel for the appellee make such of one incident
which occurred in connection with the guardianship proceedings, it
may as well be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas
Rodriguez on October 31, 1923. We will let the witness tell in his
own words what happened on the occasions in question:
I found him lying down on his bed. . . . And when it (the
cleaning of his head) was finished, I again entered his
room, and told him that I had an order of the court which I
wanted to read as I did read to him, but after reading the
order he asked me what the order meant; 'I read it to you so
that you may appear before the court, understand,' then I
read it again, but he asked what the order said; in view of
that fact I left the order and departed from the house. (S. R.,
p. 642.)
To return to our narrative possibly inspired by the latter portion of
the order of Judge Diaz, Tomas Rodriguez was taken to the
Philippine General Hospital on November 27, 1923. There he was to
remain sick in bed until his death. The physician in charge during this
period was Dr. Elias Domingo. In the clinical case record of the
hospital under the topic "Diagnosis (in full)," we find the following
"Senility; Hernia inguinal; Decubitus" (Exhibit 8).

From the decision and judgment above-mentioned the proponents

have appealed. Two errors are specified, viz: (1) The court below
erred in holding that at the time of signing his will, Tomas Rodriguez
did not possess the mental capacity necessary to make the same, and
(2) the court below erred in holding that the signatures of Tomas
Rodriguez to the will were obtained through fraudulent and deceitful
representations, made by persons interested in the executions of said
will.

On the door of the patient's room was placed a placard reading

"No visitors, except father, mother, sisters, and brothers." (Testimony
of head nurse physician, there were permitted to visit the patient only
the following named persons: Santiago Lopez, Manuel Ramirez,
Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez,
Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio
Araneta ((Exhibit 9). The list did not include the names of Margarita
Lopez and her husband Antonio Ventura. Indeed the last named
persons experienced considerable difficulty in penetrating in to the
room of Rodriguez.

The record is voluminous close to two thousand typewritten

pages, with a varied assortment of exhibits. One brief contains two
hundred seventy-four pages, the other four hundred fifteen pages.

Santiago Lopez states that on one occasion when he was visiting

Tomas Rodriguez in the hospital , Rodriguez expressed to him a
desire to make a will and suggested that the matter be taken up with

14

SUCCESSION. SET 2.
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez
communicated to Vicente F. Lopez, who then interviewed Maximino
Mina, a practicing attorney in the City of Manila, for the purpose of
securing him to prepare the will. In accordance with this request,
Judge Mina conferred with Tomas Rodriguez in the hospital in
December 16th and December 29th. He ascertained the wishes of
Rodriguez and wrote up a testament in rough draft. The attorney
expected to return to the hospital on December 31st to have the will
executed but was unable to do so on account of having to make a trip
to the provinces. Accordingly, the papers were left with Santiago
Lopez.
In corroboration of the above statements, we transcribe a portion of
Judge Mina's testimony which has not been challenged in any way:
ARANETA: Q. Will you please tell your motive for
holding an interview with Vicente Lopez?
MAXIMINO MINA: A. Then I arrived in the house of
Vicente Lopez, after the usual greeting and other
unimportant things, he consulted me or presented the
question as to whether or not D. Tomas could make his
will, having announced his desire to do so. I told him that it
seemed that we were not called upon to decide or give an
opinion as to whether or not he can make a will; it is a
question to be submitted to the court, but as he had
announced his desire, it is our duty to comply with it. Then
he requested me to do what was necessary to comply with
his wishes: I told him I was to see him; then we agreed that
on the morning next to the following evening that is on the
16th, I should go to the General Hospital and so I did.
Q. Did you go to the hospital in the evening of the 16th?
A. Yes, sir.
Q. Did you meet D. Tomas? A. Yes, sir.
Q. Did D. Tomas tell you his desire to make a will?
OCAMPO: Leading.
ARANETA: I withdraw. What, if anything, did D. Tomas
tell you on that occasion when you saw him there? A.
He told me that.
Q. Please tell us what conversation you had with D. Tomas
Rodriguez? A. The conversation I had with him that
evening according to my best recollection I cannot
tell the exact words and perhaps the order. After the usual
greetings, Good evening, D. Tomas, ' Good evening,' How
are you,' ' How do you do? Very well, just came here in the
name of D. Vicente Lopez why does he not come. He
cannot come because he has many things to do, and besides
it is hard for him and makes him tired, so he told me to
come.' Mina, your tenant, attorney.' Are you an attorney?
Yes.' Where do you live? I live in Quiapo.' Oh, in Quiapo, a
good district, it is gay a commercial place you must have
some business there because that is a commercial place.
Unfortunately, I have none, D. Tomas.' Well, you must be
have because the profession alone does not give enough.
Where is your office? I work in the office of Mr. Chicote.
That Mr. Chicote must be rich, it seems to me that he is.
The profession gives almost nothing it is better to have
properties. I am an attorney but do not depend upon my
profession. I interrupted D. Tomas saying, since you want
to make a will, when and to whom do you want to leave
your fortune? Then he said, To whom else? To my cousin
Vicente Lopez and his daughter Luz Lopez. Which
properties do you want to give to your cousin and niece?
All my properties, Won't you specify the property to be
given to each of them? What for? All my property. Don't
you have any other relatives? Yes, sir I have. Won't you
give any to those relatives? What for? was his answer. Well,
do you want to specify said properties, to say what they
are? and he again said, What for? they know them, he is my

attorney-in-fact as to all property. I also said, Well and as

legacy won't you give property to other persons? answers, I
think, something, they will know it. After being asked,
Whom do you think, would you want to be your executor?
After hesitating a little, This Torres, Manuel or Santiago
Lopez also. Then I asked him, What is your religion? He
answered, Roman Apostolic Catholic, and then he also
asked me, and your? Also Roman Apostolic Catholic,
Where have you studied?' 'In the University of Santo
Tomas.' 'It is convenient to preserve the Catholic religion
that our descendants have left us. And you, what did you
have anything more to say as to your testamentary
dispositions? No, he answered. Then I remind him, 'You
know that Vicente Lopez has sent me to get these
dispositions of yours, and he said, Yes, do it.' I asked him,
When do you want it done? Later on, I will send for you.
After this believing to have done my duty, I bade him goodbye.
Q. Did you have any other occasion to see him? A. Yes.
Q. When? A. On December 29, 1923, also in the
evening.
Q. Why did you go to see him? A. Because as I had not
received any message either from Vicente Lopez or Tomas
Rodriguez, as I had received notices in connection with the
few cases I had in the provinces particularly in Tayabas,
which compelled me to be absent from Manila until
January 1st at least, for I might be there for several days, so
I went to the General Hospital of my own accord since I
had not received any messages from them with a rough
draft which I had prepared in accordance with what he had
told me in our conversation. After the greetings, I told him,
Here I am D. Tomas; this is the rough draft of your will in
accordance with your former statements to me in order to
submit it to you. Do you want to read it?' 'Please do me the
favor of reading it. I read it slowly to him in order that he
could understand it . After reading, Is it all right, that is the
way, few words you see it takes only a few minutes;
now I can execute the will. We can do it takes only a few
minutes.' In view of that statement of his, I called his
attention, ' But we don't have witnesses, D. Tomas.' I
looked out through the door to see if I could call some
witnesses but it was late then and it was thought better to
do it on the 31st of December. Then we talked about other
things, and he again asked. Where were you born? I told
him in Quiapo. Ah, good district, and especially now that
the fiesta of Quiapo is coming near,' and then I interrupted
him, Yes, the fiesta of the Holy Child and of Our Lady of
Mount Carmel' because we also talked about the fiesta of
San Sebastian. I again reminded him that we could not do it
because the witnesses were not there and he explained,
Good Christmas present, isn't it?' I did not tell him anything
and in view of that I did not deem it necessary to stay there
any longer.
Q. With whom did you make the arrangement to make the
will on the evening of the 31st of December you said
that it was agreed that the will be executed on the evening
of December 31st? A. With Santiago Lopez and Don
Tomas.
Q. Was the will executed on the 31st of December? A.
What happened is this: In view of that agreement, I fixed
up the draft which I had, dating it the 31st of December,
putting everything in order; we agreed that Santiago would
meet me on 31st day between five and six in the evening or
a little before, but it happened that before the arrival of that
date Santiago Lopez came and told me that I need not
trouble about going to the General Hospital; because it
could not be carried out for the reason that certain
requisites were lacking. In view of this and bearing always
in mind that on the following day I had to go to the
provinces, I told Santiago Lopez that I would leave the
papers with him because I might go to the provinces.

15

SUCCESSION. SET 2.
Q. What may be the meaning of those words good
Christmas present? A. They are given a Christmas
present when Christmas comes or on the occasion of
Christmas.

As to what actually happened, we have in the record two absolutely

contradictory accounts. One emanates from the attesting witness,
Doctor Bonoan. The other is the united testimony of all remaining
persons who were there.

Q. I show you this document which is marked Exhibit A,

tell me if that is the will or copy of the will which you
delivered to Santiago Lopez on December 21, 31, 1923?
A. With the exception of the words '3 de enero de 1924' It
seems to be literally identical. (S. R. pp. 244-249.)

Doctor Elias Bonoan was the first witness called at the trial. He
testified on direct examination as to formal matters, such as the
identification of the signatures to the will .On cross-examination, he
rather started the proponents of the will by stating that Luz Lopez de
Bueno told Tomas Rodriguez to sign the document it concerned a
complaint against Castito and that nobody read the will to the testator.
Doctor Bonoan's testimony along this line is as follows:

As the witness stated, the will which was prepared by him is identical
with that signed by the testator and the attesting witnesses with the
single exception of the change of the date from December 31, 1923,
to January 3, 1924. Two copies besides the original of the will were
made. The will is brief and simple in terminology.
For purposes of record, we copy the will as here translated into
English:

QUESTIONS.
MARCAIDA : Q. Why were you a witness to the will of
Tomas Rodriguez?
Araneta: I object to the question as being immaterial.

ONLY PAGE

Court: Objection overruled.

In the City of Manila, Philippines Islands, this January 3,

1924, I, Tomas Rodriguez, of age and resident of the City
of Manila, Philippine Islands, do freely and voluntarily
make this my will and testament in the Spanish language
which I know, with the following clauses:

Dr. Bonoan: A. Because I was called up by Mrs. Luz by

telephone telling me to be in the hospital at 3 o'clock sharp
in the afternoon of the 3d of January.

First I declare that I am a Roman Apostolic Catholic, and

order that my body be buried in accordance with my
religion, standing and circumstances.

Q. Who is that Luz whom you have mentioned? A. Luz

Lopez, daughter of Vicente Lopez.
Q. What day, January 3, 1924? A. Yes, sir.

Second. I name my cousin Vicente F. Lopez and his

daughter Luz Lopez de Bueno as my only universal heirs of
all my property.

Q. When did Luz Lopez talk to you in connection with your

going to the hospital? A. On the morning of the 3d she
called me up by telephone.

Third. I appoint D. Manuel Torres and D. Santiago Lopez

as my prosecutors.

Q. On the morning? A. On the morning.

In witness whereof I sign this typewritten will, consisting

of one single page, in the presence of the witness who sign
below.
(Sgd.) TOMAS RODRIGUEZ
(Left marginal signatures:)
TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS
We hereby certify that on the date and in the place above
indicated, Don Tomas Rodriguez executed this will,
consisting of one single typewritten page, having signed at
the bottom of the will in the presence of us who saw as
witnesses the execution of this will, we signed at the
bottom thereof in the presence of the testator and of each
other.
(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)
On the afternoon of January 3, 1924 there gathered in the quarters of
Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez
and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando
Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians,
there for purposes of observation. (Testimony of Elias Bonoan, S. R.,
p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de
Bueno and Mrs. Nena Lopez were present; at least they were
hovering in the background.

Q. Before January 3, 1924, when the will of Tomas

Rodriguez was signed, did Luz Lopez talk to you? A. Yes,
sir.
Q. How many days approximately before was it? A. I
cannot tell the day, it was approximately one week before,
on that occasion when I was called up by her about the
deceased Vicente Lopez.
Q. What did she tell you when you went to the house of
Vicente Lopez one week approximately before signing the
will? - A. That Tomas Rodriguez would make a will.
Q. Don't you know where the will of Tomas Rodriguez was
made? - A. In the General Hospital.
Q. Was that document written in the hospital? A. I have
not seen it.
Q. When you went to the General Hospital on January 3,
1924, who were the persons you met in the room where the
patients was ? A. I met one of the nieces of the deceased
Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.
Q. Were those the only persons? A. Yes, sir.
Q. What time approximately did you go to the General
Hospital on January 3d? A. A quarter to 3.
Q. After you, who came? A. Antonio de Asis, Doctor
Herrera, later on Doctor Calderon arrived with Doctor Elias
Domingo and lastly Santiago Lopez came and then Mr.
Legarda.

16

SUCCESSION. SET 2.
Q. When you entered the room of the patient, D. Tomas
Rodriguez, in the General Hospital in what position did you
find him? A. He was lying down.

December 31, 1923, and that it was necessary to change the

date to January 3, 1924, and it was done.
Q. And it was then, was it not when Exhibits A, A-1, and A2 were written? A. Yes, sir.

Q. Did you greet D. Tomas Rodriguez? A. I did.

Q. Did D. Tomas Rodriguez answer you? A. Dna. Nena
immediately answered in advance and introduced me to
him saying that I was the brother of his godson.

Q. Do you any know where it was written? A. In the

General Hospital.

Q. Did other persons whom you have mentioned, viz,

Messrs. Calderon, Herrera, Domingo, De Asis and Legarda
greet Tomas Rodriguez?

Q. Did any time elapse from your making the suggestion

that the document which you delivered to Santiago Lopez
be written until those three Exhibits A, A-1, and A-2 were
presented to you? A. About nine or ten minutes
approximately.

ARANETA: I object to the question as being improper

cross-examination. It has not been the subject of the direct
examination.

Q. The time to make it clean? A. Yes, sir.

Q. Where were you during that time? A. In the room of
D. Tomas Rodriguez.

COURT: Objection overruled.

ARANETA: Exception.

Q. Were you talking with him during that time. A. Yes,

sir.

A. No, sir, they joined us.

Q. About what things were you talking with him? A. He
was asking me about my health, that of my family how my
family was my girl, whether we were living in Pasay, he
asked me about the steamer Ildefonso, he said that it was a
pity that it had been lost because he knew that my father-inlaw was the owner of the steamer Ildefonso.

Q. What was D. Tomas told when he signed the will.? A.

To sign it.
Q. Who told D. Tomas to sign the will? A. Luz Lopez.
Q. What did Luz Lopez tell Tomas Rodriguez in order that
he should sign the will? A. She told him to sign the
document; the deceased Tomas Rodriguez before signing
the document asked what that was which he was to sign.
Q. What did anybody answer to that question of D. Tomas?
A. Luz Lopez told him to sign it because it concerned a
complaint against Castito. D. Tomas said, 'What is this?"
And Luz Lopez answered, 'You sign this document, uncle
Tomas, because this is about the complaint against Castito.
Q. Then Tomas Rodriguez signed the will? A. Yes, sir.
Q. Who had the will? Who was holding it? A. Mr.
Vicente Legarda had it his own hands.
Q. Was the will signed by Tomas Rodriguez lying down, on
his feet or seated? A. Lying down.
Q. Was the will read by Tomas Rodriguez or any person
present at the time of signing the will, did they read it to
him? A. Nobody read the will to him.
Q. Did not D. Tomas read the will? A. I have not seen it.

xxx

xxx

xxx

Q. When those documents, Exhibit A, A-1, and A-2, that is

the original and two copies of the will signed by D. Tomas
Rodriguez were written clean, will you please tell what
happened? A. When Santiago Lopez gave them to me
clean, I approached D. Tomas Rodriguez and told him: Don
Tomas, here is this will which is ready for your signature.
Q. What did D. Tomas do when you said that his will you
were showing to him was ready? A. The first thing he
asked was: the witnesses? Then I called the witnesses
Gentlemen, please come forward, and they came forward,
and I handed the documents to D. Tomas. D. Tomas got up
and then took his eyeglasses, put them on and as he saw
that the electric lamp at the center was not sufficiently
clear, he said: 'There is no more light;' then somebody came
forward bringing an electric lamp.
Q. What did D. Tomas do when that electric lamp was put
in place? A. The eyeglasses were adjusted again and
then he began to read, and as he could not read much for a
long time, for he unexpectedly felt tired and took off the
eyeglasses, and as I saw that the poor man was tired, I
suggested that it be read to him and he stopped reading and
I read the will to him.

Q. Were you present? A. Yes, sir. ( S. R. p. 8)

As it would be quite impracticable to transcribe the testimony of all
the others who attended the making of the will, we will let Vicente L.
Legarda, who appears to have assumed the leading role, tell what
transpired. He testified in part:
ARANETA : Q. Who exhibited to you those documents,
Exhibits A, A-1, and A-2?
LEGARDA: A. Santiago Lopez.
Q. Did he show you the same document? A. First that is
to say the first document he presented to me was a rough
draft, a tentative will, and it was dated December 31st, and
I called his attention to the fact that the date was not

Q. What happened after you had read it to him? A. He

said to me, 'Well, it is all right. It is my wish and my will.
Don't you have any pen?' I asked a pen of those who were
there and handed it to D. Tomas.
Q. Is it true that Tomas Rodriguez asked at that time 'What
is that which I am going to sign?' and Luz Lopez told him:
'It is in connection with the complaint against Castito?'
A. It is not true, no, sir.
Q. During the signing of the will, did you hear Luz Lopez
say anything to Tomas Rodriguez? A. No, Sir, she said
nothing.

17

SUCCESSION. SET 2.
Q. According to you, Tomas Rodriguez signed of his own
accord? A. Yes, sir.

Q. Had anybody told that to the deceased, would you have

heard it? A. Yes, sir.

Q. Did nobody tell him to sign? A. Nobody.

Q. Do you remember whether he was given a pen or he

himself asked for it? A. I don't know; it is a detail which
I don't remember well; so that whether or not he was given
a pen or he himself asked for it, I do not remember.

Q. What happened after the signing of the will by Tomas

Rodriguez? A. I called the witnesses and we signed in
the presence of each other and of Tomas Rodriguez.
Q. After the signing of the will, did you have any
conversation with Tomas Rodriguez? A. Doctor
Calderon asked D. Tomas Rodriguez some questions.
Q. Do you remember the questions and the conversation
held between Doctor Calderon and D. Tomas after the
signing of the will? A. I remember that afterwards
Doctor Calderon talked to him about business. He asked
him how the business of making loans at 18 per cent. It
seems that Tomas Rodriguez answered: That loan at 18 per
cent is illegal, it is usury. (S. R., p. 38.)
In addition to the statements under oath made by Mr. Legarda, an
architect and engineer in the Bureau of Public Works and professor of
engineering and architecture in the University of Santo Tomas,
suffice it to say that Luz Lopez de Bueno denied categorically the
statements attributed to her by Doctor Bonoan (S. R., p. 568). In this
stand, she is corroborated by Doctor Calderon, Domingo, and
Herrera, the attending physicians. On this point, Doctor Calderon the
Director of the Philippine General Hospital and Dean of the College
of Medicine in the University of the Philippines, testified:
Mr. ARANETA: Q. What have you seen or heard with
regard to the execution of the will?
Dr. CALDERON: A. Mr. Legarda handled the will to D.
Tomas Rodriguez. D. Tomas asked for his eyeglass, wanted
to read and it was extremely hard for him to do so. Mr.
Legarda offered to read the will, it was read to him and he
heard that in that will Vicente Lopez and Luz Lopez were
appointed heirs; we also saw him sign that will, and he
signed not only the original but also the other copies of the
will and we also saw how the witnesses signed the will; we
heard that D. Tomas asked for light at that moment; he
heard that D. Tomas asked for light at that moment; he was
at that time in a perfect mental state. And we remained
there after the will was executed. I asked him, 'How do you
feel, how are you? Well I am well, ' he answered. ' How is
the business? There is a crisis at there is one good business,
namely, that of making loans at the rate of 18 per cent, 'and
he answered, 'That is usury.; When a man answers in that
way, ' That is usury it shows that he is all right.
Q. Were you present when Mr. Legarda handed the will to
him? A. Yes, sir.
Q. Did any person there tell Don Tomas that was a
complaint to be filed against one Castito? A. No, sir, I
have not heard anything of the kind.
Q. It was said here that when the will was handed to him,
D. Tomas Rodriguez asked what that was which he was to
sign and that Luz Lopez answered, 'That is but a complaint
in connection with Castito.' Is that true? A. I have not
heard anything of the kind.
Q. Had anybody told that to the deceased, would you have
heard it? A. Yes, sir.
Q. Was Luz Lopez there? A. I don't remember having
seen her; I am not sure; D. Santiago Lopez and the three
witnesses were there; I don't remember that Luz Lopez was
there.

Q. But did he sign without hesitation ? A. With no

hesitation.
Q. Did he sign without anybody having indicated to him
where he was to sign? A. Yes, without anybody having
indicated it to him.
Q. Do you know whether D. Tomas Rodriguez asked for
more light before signing? A. He asked for more lights,
as I have said before.
Q. Do you remember that detail? A. Yes, sir. They first
lighted the lamps, but as the light was not sufficient, he
asked for more light.
Q. Do you remember very well that he asked for light?
A. Yes, sir. (S. R. p.993).
A clear preponderance of the evidence exists in favor of the
testimony of Vicente Legarda, corroborated as it is by other witnesses
of the highest standing in the community. The only explanation we
can offer relative to the testimony of Doctor Bonoan is that possibly
he may have arrived earlier than the others with the exception of Luz
Lopez de Bueno, and that Luz Lopez de Bueno may have made some
sort of an effort to influence Tomas Rodriguez. There is however no
possible explanation of the statement of Doctor Bonoan to the effect
that no one read the will to Rodriguez when at least five other
persons recollect that Vicente Legarda read it to him and recall the
details connected with the reading.
There is one curious occurrence which transpired shortly after the
making of the will which should here be mentioned. It is that on
January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos
(P1,000). This paper reads as follow:
Be it know by these present:
That I, Luz Lopez de Bueno in consideration of
the services which at my instance were and will
when necessary be rendered by Dr. Elias Bonoan
in connection with the execution of the will of
my uncle, Don Tomas Rodriguez and the due
probate thereof, do hereby agree to pay said
doctor, by way of remuneratory donation, the
sum of one thousand pesos (P1,000), Philippine
currency, as soon as said services shall have been
fully rendered and I shall be in possession of the
inheritance which in said will is given to me.
In witness whereof, I sign this document which
was freely and spontaneously executed by me in
Manila, this January 7, 1923.
(Sgd.) LUZ LOPEZ DE BUENO
(Exhibit 1)
There is a sharp conflict of testimony, as is natural between Doctor
Bonoan and Luz Lopez de Bueno relative to the execution of the
above document. We shall not attempt to settle these differences as in
the final analysis it will not affect the decision one way or the other.
The most reasonable supposition is that Luz Lopez de Bueno
imprudently endeavored to bring over Doctor Bonoan to her side of
the race by signing and giving to him Exhibit 1. But the event cannot
easily be explained away.

18

SUCCESSION. SET 2.
Tomas Rodriguez passed away in the Philippine General Hospital, as
we said on February 25, 1924. Not even prior to his demise the two
actions in the Lopez family had prepared themselves for a fight over
the estate. The Luz Lopez faction had secured the services of Doctor
Domingo, the physician in charge of the Department of Insane of San
Lazaro Hospital an Assistant Professor of Nervous and Mental
Diseases in the University of the Philippines, as attending physician;
as associated with him for purposes of investigation Dr. Fernando
Calderon the Director of the Philippine General Hospital and Dr.
Florentino Herrera, a physician in active practice in the City of
Manila; and had arranged to have two members of the medical
fraternity, Doctors De Asis and Bonoan as attesting witnesses. The
Margarita Lopez faction had taken equal precautions by calling a
witnesses in the guardship proceedings Dr. Sixto de los Angeles
Professor and Chief of the Department of Legal Medicine in the
University of the Philippines, and Dr. Samuel Tietze, with long
experience in mental diseases; thereafter by continuing Doctors de
Los Angeles and Tietze to examine Tomas Rodriguez and by
associating with them Dr. William Burke, a well-known physician of
the City of Manila. Skilled lawyers were available to aid and abet the
medical experts. Out of such situations, do will contests arise.
An examination of the certificates made by the two sets of physicians
and of their testimony shows that on most facts they concur. Their
deductions from these facts disclose a substantial divergence of
opinion. It is a hopeless task to try to reconcile the views of these
distinguished gentlemen who honestly arrived at definite but
contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed
on the hand and of the De Los Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez
individually and jointly before the date when the will was executed.
All of them, as we have noticed were, present at the signing of the
will to note the reactions of the testator. On the same day that the will
was accomplished, the three doctors signed the following certificate:
The undersigned, Drs. of Medicine, with offices in the City
of Manila, and engaged in the practice of their profession
do hereby certify:
That they have jointly examined Mr. Tomas Rodriguez,
confined in the General Hospital, floor No. 3, room No.
361 on three different occasion and on different days and
have found that said patient is suffering from anemia,
hernia inguinal, chronic dyspepsia and senility.
As to his mental state the result of the different tests to
which this patient was submitted is that his intellectual
faculties are sound, except that his memory is weak, which
is almost a loss for recent facts, or events which have
recently occurred, due to his physical condition and old
age.
They also certify that they were present at the time he
signed his will on January 3, 1924, at 1:25 p.m. and have
found his mental state in the same condition as was found
by the undersigned in their former examination and that in
executing said will the testator and full knowledge of the
contents thereof.
In testimony whereof, we sign in Manila this January 3,
1924.
(Sgd.) FLORENTINO HERRERA
Tuberias 1264
Quiapo
(Sgd.) Dr. FERNANDO CALDERON
General Hospital
Manila

(Sgd.) Dr. ELIAS DOMINGO

613 Remedios
Malate
(Exhibit E in relation with Exhibits C and D.)
Doctor Calderon while on the witness-stand expressed a
definite opinion as to the mentality of Tomas Rodriguez
What follows is possibly the most significant of the doctor's
statements:
Dr. CALDERON testifying after interruption:
A. I was naturally interested in finding out the true mental
state of Tomas Rodriguez and that was the chief reason
why I accepted and gave my cooperation to Messrs. Elias
Domingo and Florentino Herrera because had I found that
Tomas Rodriguez and Florentino Herrera because had I
found that Tomas Rodriguez was really insane, I should
have ordered his transfer to the San Lazaro Hospital or to
other places, and would not have left him in the General
Hospital. Pursuant to my desire, I saw Tomas Rodriguez in
his room alone twice to have interviews with his, he
begging a person whom I knew since several years ago; at
the end of the interviews I became convinced that there was
nothing wrong with him; I had not seen anything indicating
that he was insane and for this reason I accepted the request
of my companions and joined them; we have been on five
different occasions examining Tomas Rodriguez jointly
from the physical standpoint but chiefly from the
standpoint of his mental state; I have been there with
Messrs. Herrera and Elias Domingo, examining Tomas
Rodriguez and submitting to a mental test on the 28, 29, 10
and 31 of December and the 22nd of January, 1924 five
consecutive days in which he have been together besides
my particular visits.
Q. Will you place state the result of the observation you
made alone before those made by the three of you jointly?
A. I asked Tomas Rodriguez some questions when I
went alone there, I asked him were he was living formerly
and he well remembered that in Intramuros, Calle Real; I
asked him whether he remembered one Calderon who was
living in the upper floor of the house and then he told me
yes; than I asked him about his tenant by the name of
Antonio Jimenez and he told me yes, now I remember
that he had two daughters, Matilde and Paz. Then I told him
that I had been living in the house of the gentlemen,
Antonio Jimenez already dead in the upper story of the
house belonged to Tomas Rodriguez; I told him that
Antonio Jimenez was his tenant of the upper story, that is
that he was living on the ground floor and Antonio Jimenez
upstairs and he remembered all of this I also began to talk
of my brother, Felipe Calderon, who he said of course that
he knew; he remembered him because he was his
companion and was a successful attorney. This was when I
had an interview with him. Then in order to observe better
and to be sure of my judgment or opinion about the mental
state of Tomas Rodriguez, I saw him again and we began to
speak of something which I don't remember now. In fine,
we talked of things of interest and as I had finally accepted
the request of Drs. Elias Domino and Florentino Herrera to
join then the first and second time that Herrera, Domingo
and myself went there, no stenographic notes were taken of
what happened there.
Q. So that before joining Doctors Herrera and Domingo
you had already paid two visits to the patient? A. Yes,
sir.
Q. From the result f the conversation you had with Tomas
Rodriguez on those two visits what is your opinion as to his
mental capacity? A. That he was sick; that he was weak,
but I have found absolutely no incoherence in his ideas; he
answered my questions well and as I was observing him

19

SUCCESSION. SET 2.
there were times when he did not remember things of the
present because this must be admitted but on the
other hand he had a wonderful memory of past events; in
talking with him, you would not notice in the conversation
any alteration in his mind nor that man had lost the
reasoning power or logic.

Q. On November 28 or October 28, 1923, do you

remember? A. I had been attending him as physician
from November 28th although it true that I had
opportunities to see and examine him during the months of
October and November.
Q. What was the object of your visits or attendance during
the months of October and November? A. It was for the
purpose of observing his mental state.

Q. Did you notice any loss of memory, or that his memory

was weakening about things of the past? A. About things
of the past, I mean that you talk to him now about specific
matters, and after about five or ten minutes he no longer
remembers what had been talked of.
xxx

xxx

xxx

Q. Do you remember the conversation you had with him

for the first time when the three of you paid a visit to the
patient? A. I don't remember the details, but I do
remember the questions I put to him. I asked D. Tomas
Rodriguez: You are an old man aged, sick: Yes, I am
thinking to make a will. But why don't you decide? There is
no hurry there is time to make a will, 'he said. Then in case
you decide to make a will, to whom are you going to leave
your property? Don't you have any relatives? I have a
relative, Vicente Lopez, my first cousin, and Margarita
Lopez my first cousin they are brothers.' In that case, to
whom, do you want to leave your property? Why, I don't
have much, very little, but I am decided to leave it to my
cousin, Vicente Lopez and his daughter Luz Lopez. Why
would you not give anything to Margarita Lopez? No
because her husband is very bad, 'to use his exact language
is very bad.'
Q. Did you talk with him on that occasion about his estate?
A. Yes, sir, he told me that he had three estates, one
on Calle Magallanes, another on Calle Cabildo and the
third on Calle Juan Luna and besides he had money in the
Monte de Piedad and Hogar Filipino.
xxx

xxx

Q. Did you really examine his mental condition or capacity

during the months of October and November? A. Yes,
sir.

xxx

Q. From the question made by you and the answers given

by Mr. Tomas Rodriguez on that occasion, what is your
opinion as to his mental capacity? A. The following:
That the memory of Tomas Rodriguez somewhat failed as
to things of the present, but is all right with regard to
matters or facts of the past; that his ideas were incoherent;
that the thought with logic, argued even with power and
generally in some of the interviews I have arrived at the
conclusion that Tomas Rodriguez had an initiative of his
own, did not need that anybody should make him any
suggestion because he answered in such a way that if you
permit me now to show you my stenographic notes, they
will prove to you conclusively that he had an initiative of
his own and had no need of anybody making him any
question. (S. R. p. 72.)
Doctor Elias Domingo, who was the attending physician for Tomas
Rodriguez throughout all the time that Rodriguez in the hospital had
examined him, was likewise certain that Rodriguez possessed
sufficient mentality to make a will. Among other things, Doctor
Domingo testified:
ARANETA: Q. Have you known D. Tomas Rodriguez?
Dr. DOMINGO: A. Yes, sir.
Q. Did you attend D. Tomas Rodriguez as physician? A.
Yes, sir.
Q. When did you begin to attend him as physician? A.
On November 28, until his death.

Q. How many times did you visit him? A. I don't

remember exactly but I visited him about five or six times.
xxx

xxx

xxx

Q. Please tell us the result of your examination during those

months of October and November? A. I examined him
physically and mentally; I am not going to tell here the
physically result but the result of the mental examination,
and that is: General Conduct: In most of the times that I
have seen him I found him lying on his bed, smoking a
cigarette and asked for a bottle of lemonade from time to
time; I also observed that he was very careful when
throwing the ash of the cigarette, seeing to it that it did not
fall on the blankets; he also was careful not to throw the
stub of the cigarette in any place to avoid fire; I made more
observations as to his general conduct and I found that
sometimes Don Tomas could move within the place
although with certain difficulty. On two occasions I found
him seated, once seated at the table, seated in the chair, and
other on a rocking chair. I also examined his manner of
talking and to all questions that I put to him he answered
with a coherence and in a relevant manner, although
sometimes he showed eagerness and certain delay. I based
these points of my declaration on the questions which are
usually asked when making a mental examination for
instance I asked him, What is your name, 'and he correctly
answered Tomas Rodriguez; I asked him if he was married
and he answered 'No;' I asked him his profession and he
answered that formerly he was an attorney but that at the
time I was making the examination he was not practising
the profession; I asked him with what he supported himself
and he said that he lived upon his income, he said verbatim,
'I live on my income.' I also asked him what the amount of
him income was and he answered that it was about P900; I
asked him what the source of this income was and he said
that it came from his property.
Q. Did you ask him about his property? A. No, at that
time.
Q. Proceed. A. I also observed his emotional status and
effectivity. I found it rather superficial, and he oftentimes
got angry due to his physical disease; I asked him if he had
any relatives and he answered correctly saying that he had.
He mentioned Vicente Lopez, Margarita Lopez, and Luz
Lopez. As to his memory. His memory of the past. He very
easily remembered past events and when he described them
he did it with such pleasure the he used to smile afterwards
if it was a fact upon which one must smile, His memory
of recent facts was very much lessened. I say this because
on various occasions and not having known me when he
had a better memory, after I had seen him thrice he
remembered my name and he recognized me. Insight and
judgment. I arrived at the conclusion that he had fair
knowledge of himself because he knew that he was sick
and could not be moving with ease, but he believed that he
could perform with sufficient ease mental acts; his
judgment was also all right because I asked him this
question: 'Supposing that you could find a bill of P5 in the
vestibule of a hotel, what would you do with it ?' He told

20

SUCCESSION. SET 2.
me that he would take the bill and give it to the manager in
order that the latter may look for the owner if possible. His
reasoning. I found that he showed a moderated retardation
in the flow of his thought, especially with regard to recent
events, but was quite all right as to past events, His
capacity, He believed that he was capable of thinking
properly although what did not permit him to do so was his
physical decrepit condition. The conclusion is that his
memory is lost for recent events tho not totally and
diminution of his intellectual vigor. This is in few words
the result of my examination.
Tomas Rodriguez was likewise examined thoroughly by Doctors De
los Angeles, Tietze, and Burke. Doctor De los Angeles had been a
witness in the gurardianship proceedings and had seen the patient of
November 6 and 7, 1923. Doctor Tietze had also been a witness in
the guardianship case and had visited the patient on November 9 and
12, 1923, and on January 15, 1924. Doctors Tietze and Burke
together examined Rodriguez on January 17, 20, and 24, 1924. The
three physicians conducted a joint examination result, on March 15,
1924, they prepared and signed the following:
MEDICAL CERTIFICATE
In the Matter of Tomas Rodriguez y Lopez, male, 76 years
of age, single and residing or being confined in the
Philippine General Hospital.
We, the undersigned Doctors, Sixto de los Angeles, W. B.
Burke, and Samuel Tietze, do hereby certify as follows:
1. That we are physicians, duly registered under the
Medical Act, and are in the actual practice of the medical
profession in the Philippines.
2. That on January 27th and 28th, and February 10th, 1924,
at the Philippine General Hospital, we three have with care
the diligence jointly and personally examined the person of
said Tomas Rodriguez y Lopez; and previous to these
dated, we have separately and partly jointly observed and
examined said patient on various occasions; Dr. Sixto de
los Angeles, at the patient's home, 246 Magallanes St.,
Manila, on November 6th and 7th , 1923; Dr. Samuel
Tietze, at the patient's home on November 9th and 12th,
1923, and at the Philippine General Hospital no January
17th, 20th, and 24, 1924; and as a result of the medical
examinations and the history of the case we found and
hereby certify to the following conclusions:
(a) That he was of unsound mind suffering from senile
dementia, or of mental impairment exceeding to a
pathological extent the unusual conditions and changes
found to occur in the involutional period of life.
(b) That he was under the influence of the above condition
continuously, at least from November, 1923, till the date of
our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he would naturally have
continued without improvement, as these cases of insanity
are due to organic pathological changes of the brain. This
form of mental disease is progressive in its pathological
tendency, going on to progressive atropy and degeneration
of the brain, the mental symptoms, of course, running
parallel with such pathological basis.
(c) That on account of such disease and conditions his mind
and memory were so greatly impaired as to make him
unable to know or to appreciate sufficiently the nature,
effect, and consequences of the business he was engaged
in; to understand and comprehend the extent and condition
of his properties; to collect and to hold in his mind the
particulars and details of his business transactions and his
relations to the persons who were or might have been the
objects of his bounty; and to free himself from the
influences of importunities, threats and ingenuities, so that

with a relatively less resistance, he might had been induced

to do what others would not have done.
3. We have diagnosed this case as senile demential of the
simple type, approaching the deteriorated stage upon the
following detailed mental examination:
(a) Disorder of memory. There was almost an absolute
loss of memory of recent events, to the extent that things
and occurrences seen or observed only a few minutes
previously were completely forgotten. Faces and names of
person introduced to him were not remembered after a
short moment even without leaving his bedside . He
showed no comprehension of the elemental routine
required in the management of his properties, i.e.: who
were the lessees of his houses, what rents they were paying,
who was the administrator of his properties, in what banks
he deposited his money or the amount of money deposited
in such banks. Regarding his personal relation, he forgot
that Mr. Antonio Ventura is the husband of his nearest
woman cousin; the Mrs. Margarita Lopez was married,
saying that the latter was single or spinster, in spite of the
fact that formerly, during the past twenty-five years, he was
aware of their marriage life, He did not know the names of
the sons and daughters of Mr. Vicente Lopez, one of his
nearest relatives, even failing to name Mrs. Luz Lopez de
Bueno, a daughter of said Vicente Lopez, and who now
appears to be the only living beneficiary of his will. He also
stated that Mr. Vicente Lopez frequently visited him in the
hospital, though the latter died on January 7th, 1924. He
did not recognized and remember the name and face of
Doctor Domingo, his own physician. However, the memory
for remote events was generally good, which is a
characteristic symptom of senile dementia.
(b) Disorientation of time, place and persons. He could
not name the date when asked (day or month); could not
name the hospital wherein he was confined; and failed to
recognize the fact that Doctor Domingo was his physician.
(c) Disorders of perception. He was almost completely
indifferent to what was going on about him. He also failed
to recognize the true value of objects shown him, that is he
failed to recognized the 'Saturday Evening Post' nor would
he deny that it was a will when presented as such. He also
failed to show normal intellectual perception. Making no
effort to correlate facts or to understand matters discussed
in their proper light.
(d) Emotional deterioration. The patient was not known
during his time of physical incapacity to express in any way
or lament the fact that he was unable to enjoy the happiness
that was due him with his wealth. As a matter of fact, he
showed complete indifference. He showed loss of
emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food
did not arrive immediately of when his cigar was not lit
soon, he would becomes abusive in his language and show
marked emotional outburst. If the servants did not
immediately answer his call, he would break down and cry
as a child.
(e) Symptoms of decreased intellectual capacity. There
was a laxity of the internal connection of ideas. The patient
has shown no insight regarding his own condition. He did
not appreciate the attitude of the parties concerned in his
case; he would on several occasion become suspicious and
fail to comprehend the purpose of our examination. He was
inconsistent in his ideas and failed to grasp the meaning of
his own statements. When questioned whether he would
make a will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and
Hospicio de San Jose. When He was informed, however,
that he had made a will on January 31, 1924, he denied the
latter statement, and failed to explain the former. Although
for a long time confined to bed and seriously ill for a long

21

SUCCESSION. SET 2.
period, he expressed himself as sound physically and
mentally, and in the false belief that he was fully able to
administer his business personally.
His impairment of the intellectual field was further shown
by his inability, despite his knowledge of world affairs, to
appreciate the relative value of the statement made by
Doctor Tietze as follows: 'We have here a cheque of P2,000
from the King of Africa payable to you so that you may
deposit it in the bank. Do you want to accept the cheque?'
His answer was as follows: 'Now I cannot give my answer.
It may be a surprise.' Such answer given by a man after
long experience in business life, who had handled real
estate property, well versed in the transaction of cheques,
certainly shows a breaking down of the above field. No
proper question were asked why the cheque was given by
the King, who the King was, why he was selected by the
King of Africa, or if there is a King of Africa at present. He
further shows doubt in his mental capability by the
following questions and answers:
"MARCAIDA: P. Tiene usted actualmente algn
asunto en los tribunales de justicia de Manila? -R. No recuerdo en este momento.
"P. De tener usted algn asunto propio en los
tribunales de justicia de Manila, a qu abogado
confiara usted la defensa del mismo?--R. Al Sr.
Marcaida, como conocido antiguo.
"P. Ha hablado usted y conferenciado alguna vez
o varias veces en estos das, o sea desde el 25 de
octubre de 1923 hasta hoy, con algn abogado
para que le defendiera algn asunto ante el
Juzgado de Primera Instancia de Manila?--R. Con
ninguno, porque en caso de nombrar, nombrara
al Sr. Marcaida. (P. 5, deposition, Nov. 19, 1923.)
"ARANETA: P. No recuerda usted que usted me
ha encomendado como abogado para que me
oponga a que le declaren a usted loco o
incapacitado?--R. S, seor, quien ha solicitado?
(P. 9, deposition, Nov. 19, 1923.)

"P.Usted nos ve a los tres? (Doctores ngeles,

Burke y Tietze).--R. Ya lo creo.
"Dr. BURKE: P. Qu profesin tenemos?
(Sealando a los Sres. ngeles, Burke y Tietze).-R. YO creo que son doctores.
"P. Y lso dos? (Sealando a los Doctores
ngeles y Tietze).--R. No. s.
"P. Y este seor? (Sealando al Doctor
ngeles).--R. No me acuerdo en este momento.
(P. 4. And 5, sten. N., Feb. 10, 1924.)
(f) Other facts bearing upon the history of the case
obtained by investigation of Doctor Angeles:
I. Family History. His parents were noted to be of
nervous temper and irritable.
II. Personal history. He was a lawyer, but did not pursue
his practice, devoting the greater part of his life to
collecting antiquities, He was generally regarded by his
neighbors as miserly and erratic in the ordinary habits of
life. He lead a very unhygienic life, making no attempt to
clean the filth of dirt that was around him. He was
neglectful in personal habits. On April, 1921, he suffered an
injury to his forehead, from which he became temporarily
unconscious, and was confined in the Philippine General
Hospital for treatment. He frequently complained of attacks
of dizziness and headache, following this injury; suffered
form a large hernia; and about two years ago, he was fined
for failure in filing his income tax, from which incident, we
have reason to believe, the onset of his mental condition
took place. This incident itself can most probably be
considered as a failure of memory. His condition became
progressively worse up to his death.
4. The undersigned have stated all the above facts
contained in this certificate to the best of our knowledge
and belief.
Manila, P.I., March 15, 1924.

"Dr. DOMINGO: P. Don Toms, me conoce

usted? Se acuerda usted que soy el Doctor
Domingo?--R. S. (P. 7, sten. N., Jan. 28, 1924.)
"P. Quin soy, Don Toms, usted me conoce?-R. No s. (P. 6, sten. N., Feb. 10, 1924.)
"Dr. NGELES: P. Me conoce usted, D.
Toms?--R. Le conozco de vista. (P. 6, sten. N.,
Jan. 28, 1924.)
"P. Nos vamos a despedir ya, Don Toms, de
usted. Yo soy el Doctor ngeles, me conoce
usted?--R. De nombre.
"P. Este es el Doctor Burke, le conoce usted?--R.
De nombre.
"P. Este es el Doctor Domingo, le conoce
usted?--R. De vista.
"P. Este es el Doctor Burke, recuerda usted su
nombre?--R. No. (P. 10, sten. N., Jan. 28, 1924.)
"P.Usted conoce a este Doctor? (Sealando al
Doctor Burke).--R. De vista; su nombre ya lo he
olvidado, ya no me acuerdo.

(Sgd.) SIXTO DE LOS ANGELES

W.B. BURKE, M.D.
SAMUEL TIETZE
(Exhibit 33 in relation with Exhibits 28 and 29.)
Another angle to the condition of the patient on or about January 3,
1924, is disclosed by the treatment record kept daily by the nurses, in
which appear the nurse's remarks. (Exhibits 8-A, 8-B, and 8-C.) In
this connection, the testimony of the nurses is that Rodriguez was in
the habit for no reason at all of calling "Maria, where are my 50
centavos, where is my key." In explanation of the observation made
by the nurses, the nurse Apolonio Floreza testified.
Direct questions of Attorney OCAMPO:
Q. Among your observations on the 1st of January, 1924,
you say 'with pains all over the body, and uttered some
incoherent words of the same topics whenever is
awakened.' How could you observe that he had pains all
over the body?
APOLONIO FLOREZA, nurse: A. I observed that by the
fact that whenever I touched the body of the patient he
complained of some pain.
Q. On what part of the body did you touch him? A. On
all the parts of his body.

22

SUCCESSION. SET 2.
xxx

xxx

xxx

Q. How did you touch him, strongly or not? A. Slightly.

Q. When you touched him slightly, what did he do? A.
He said that it was aching.
Q. What words did he say when, according to your note, he
uttered incoherent words whenever he awakes? A. As
for instance, 'Maria,' repeating it 'Where are my 50
centavos, where is my key?'
Q. Did you hear him talk of Maria? A. Only the word
Maria.
Q. How long approximately was he talking uttering the
name of 'Maria, Where are my 50 centavos,' and where is
my key? A. For two or three minutes.
Q. Can you tell the court whether on those occasions when
he said the name of Maria he said other words and was
talking with somebody? A. He was talking to himself.
Q. This remark on Exhibit 8-B when was it written by you?
A. January 2, 1924.
Q. In the observation correspondingly to January 2, 1924
you say, 'With pains over the body,' and later on talked too
much whenever patient is awakened.' How did you happen
to know the pain which you have noted here? A. The pains
all over the body, I have observed them when giving him
baths.
Q. Besides saying that it ached when you touched the body,
do you know whether he did any extraordinary thing? A.
You mean to say acts?
Q. Acts or words? A. Yes, sir, like those words which I have
already said which he used to say Maria, the key, 50
centavos.
Q. You say that he called Maria. What did he say about
Maria on that date January 2, 1924? A. He used to say
Maria where is Maria?
Q. On that date January 2, 1924, did you answer him when
he said Maria? A. No sir.
Q. In this observation of yours appearing on page 8-C you
say among other things with pain all over the body and
shouted whenever he is given injection.' Did you really
observe this in the patient? A. Yes, sir.
Q. How did he shout?
ARANETA: Objection as being immaterial.
COURT: Overruled.
ARANETA: Exception.
A. In a loud voice.
Q. Besides shouting do you remember whether he said
anything? A . He repeated the same words I have said
before Maria the 50 centavos the key.
Q. When did this observation occur which appear on page
8-C? A. On January 3, 1924. (S. R. p. 5595.)

On certain facts pertaining to the condition of Tomas Rodriguez there

is no dispute. On January 3, 1924, Rodriguez had reached the
advanced age of 76 years. He was suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924,
Doctors Calderon, Domingo and Herrera admit that he was senile.
They, together with Doctors De los Angeles, Tietze, and Burke,
further declare that his memory however for remote events was
generally good. He was given to irrational exclamations symptomatic
of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that
the intellectual faculties of the patient are "sound, except that his
memory is weak," and that in executing the will the testator had full
understanding of the act he was performing and full knowledge of the
contents thereof, Doctors De Los Angeles, Tietze and Burke certify
that Tomas Rodriguez was of unsound mind and that they diagnosed
his case as senile dementia of the simple type approaching the
deteriorated stage. Without attempting at this stage to pass in
judgment on the antagonistic conclusions of the medical witnesses, or
on other disputed point, insofar as the facts are concerned, a
resolution of the case comes down to this: Did Tomas Rodriguez on
January 3, 1924, possess sufficient mentality to make a will, or had
he passed so far along in senile dementia as to require the court to
find him of unsound? We leave the facts in this situation to pass on to
a discussion of the legal phases of the case.
B. Law. The Code of Civil Procedure prescribes as a requisite to
the allowance of a will that the testator be of "sound mind" (Code of
Civil Procedure, sec. 614). A "sound mind" is a "disposing mind."
One of the grounds for disallowing a will is "If the testator was
insane or otherwise mentally incapable of the execution." (Code of
Civil Procedure, sec. 634 [2].) Predicated on these statutory
provisions, this court has adopted the following definition of
testamentary capacity: "'Testamentary capacity is the capacity to
comprehend the nature of the transaction in which the testator is
engaged at the time, to recollect the property to be disposed of and
the persons who would naturally be supposed to have claims upon the
testator, and to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.'" (Bugnao vs.
Ubag [1909], 14 Phil., 163, followed in Bagtas vs. Paguio [1912], 46
Phil., 701.) The mental capacity of the testator is determined as of the
date of the execution of his will (Civil Code, art. 666).
Various tests of testamentary capacity have been announced by the
courts only later to be rejected as incomplete. Of the specific tests of
capacity, neither old age, physical infirmities, feebleness of mind,
weakness of the memory, the appointment of a guardian, nor
eccentricities are sufficient singly or jointly to show testamentary
incapacity. Each case rests on its own facts and must be decided by
its own facts.
There is one particular test relative to the capacity to make a will
which is of some practical utility. This rule concerns the nature and
rationality of the will. Is the will simple or complicated? Is it natural
or unnatural? The mere exclusion of heirs will not, however, in itself
indicate that the will was the offspring of an unsound mind.
On the issue of testamentary capacity, the evidence should be
permitted to take a wide range in order that all facts may be brought
out which will assist in determining the question. The testimony of
subscribing witnesses to a will concerning the testator's mental
condition is entitled to great weight where they are truthful and
intelligent. The evidence of those present at the execution of the will
and of the attending physician is also to be relied upon. (Alexander
on Willis, vol. I, pp. 433, 484; Wharton & Stille's Medical
Jurisprudence, vol. I pp. 100 et seq.)
The presumption is that every adult is sane. It is only when those
seeking to overthrow the will have clearly established the charge of
mental incapacity that the courts will intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689;
Bagtas vs. Paguio, supra.)

23

SUCCESSION. SET 2.
Counsel for the appellee make capital of the testator being under
guardianship at the time he made his will. Citing section 306 of the
Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive with respect to the condition of
the person. To this statement we cannot write down our conformity.
The provisions of the cited section were taken from California, and
there the Supreme court has never held what is now urged upon us by
the appellee. The rule announced that in some states, by force of
statute, the finding of insanity is conclusive as to the existence of
insanity during the continuance of adjudication, is found to rest on
local statutes, of which no counterpart is found in the Philippines. (32
C.J., 647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of the
Estate of Johnson [1881], 57 Cal., 529.) Even where the question of
insanity is out in issue in the guardianship proceedings, the most that
can be said for the finding is that it raises a presumption of incapacity
to make a will but does not invaluable the testament if competency
can be shown. The burden of providing sanity in such case is cast
upon the proponents.
It is here claimed that the unsoundness of mind of the testator was the
result of senile dementia. This is the form of mental decay of the aged
upon which will are most often contested. A Newton, Paschal, a
Cooley suffering under the variable weather of the mind, the flying
vapors of incipient lunacy," would have proved historic subjects for
expert dispute. Had Shakespeare's King Lear made a will, without
any question it would have invited litigation and doubt.
Senile dementia usually called childishness has various forms and
stages. To constitute complete senile dementiathere must be such
failure of the mind as to deprive the testator of intelligent action,. In
the first stages of the diseases, a person may possess reason and have
will power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's
Medical Jurisprudence, vol. I. pp. 791 et seq.; Schouler on Wills, vol.
I, pp. 145 et seq.)
It is a rather remarkable coincidence that of all the leading cases
which have gone forth from this court, relating to the testator having
a sound and disposing mind, and which have been brought to our
notice by counsel, every one of them has allowed the will, even when
it was necessary to reverse the judgment of the trial court. A study of
these cases discloses a consistent tendency to protect the wishes of
the deceased whenever it be legally possible. These decisions also
show great tenderness on the part of the court towards the last will
and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil.,
689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10
Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163,
per Carson, J.; Macapinlac vs. Alimurong [1910], 16 Phil., 41, per
Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent, J.;
Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs.
Corrales Tan Quintin [1923], 44 Phil., 573, per Ostrand, J.; and
Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because of
their peculiar applicability, we propose to make particular mention of
four of the earlier cases of this court.
In the case of Hernaez vs. Hernaez supra the subject of the action
was the will executed by Dona Juana Espinosa. The annulment of the
will was sought first upon the ground of the incapacity of the
testatrix. She was over 80 years of age, so ill that three days extreme
unction, and two days afterwards she died. Prior thereto she walked
in a stooping attitude and gave contradictory orders," as a result of
her senile debility." The chief Justice reached the conclusion that
neither from the facts elicited by the interrogatories nor the
documents presented "can the conclusion be reached that the testatrix
was deprived of her mental faculties." The will was held valid and
efficacious.
In the case of In the matter of the will of Butalid, supra, the will was
contested for the reason that Dominga Butalid at the date of the
execution of the document was not in the date of the execution of the
document was not in the free use of her intellectual powers, she being
over 90 years of age, lying in bed seriously ill, senseless and unable
to utter a single word so that she did not know what she was doing
when she executed the will while the document was claimed to have
been executed under the influence and by the direction of one of the
heirs designated in the will. Yet after an examination of the evidence
in the will. Yet after an examination of the evidence in the will. The

Chief Justice rendered judgment reversing the judgment appealed

from and declaring the will presented for legalization to be valid and
sufficient.
In the case of Bugnao vs. Ubag, supra the court gave credence to the
testimony of the subscribing witnesses who swore positively that at
the time of the execution of the will the testator was of sound mind
and memory. Based on these and other facts, Mr. Justice Carson,
speaking for court, laid down the following legal principles:
Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary known as insanity or idiocy there are
numberless degrees of mental capacity or incapacity and
while on one hand it had been held that mere weakness of
mind or partial imbecility from disease of body, or from
age, will to render a person incapable of making a will a
weak or feeble minded person may make a valid will
provided he has understanding and memory sufficient to
enable him to know what he is about and how or to whom
he is disposing of his property' (Lodge vs. Lodge, 2 Houst.
[Del.] 418); that, "To constitute a sound be unbroken or
unimpaired, unshattered by disease or otherwise (Sloan vs.
Maxwell, # N. J. Eq., 563); that it has not been understood
that a testator must possess these qualities (of sound and
disposing mind and memory) in the highest degree. . . .Few
indeed would be the wills confirmed it this is correct. Pain,
sickness, debility of body from age or infirmity, would
according to its violence or duration in a greater or less
degree, break in upon, weaken, or derange the mind, but the
derangement must be such as deprives him of the rational
faculties common to man' (Den. vs. Vancleve, 5 N. J. L.,
680); and that Sound mind does not mean a perfectly
balanced mind. The question of soundness is one of degree'
(Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25);
on the other hand, it has been held that testamentary
incapacity does not necessarily require that a person shall
actually be insane or of an unsound mind. Weakness of
intellect, whether it arises from extreme old age, from
disease, or great bodily infirmities of suffering, or from all
these combined, may render the testator in capable of
making a valid will, providing such weakness really
disqualifies for from knowing or appreciating the nature,
effects, or consequences of the act she is engaged in
(Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293,
302).
In the case of Nagtas vs. Paquio, supra, the record shows that the
testator for some fourteen or fifteen years prior to the time of his
death suffered from a paralysis of the left side of his body, that a few
years prior to his death his hearing became impaired and that he had
lost the power of speech. However, he retained the use of his hand
and could write fairly well. Through the medium of signs, he was
able to indicate his wishes to his family. The will was attacked n the
ground that the testator lacked mental capacity at the time of its
execution. The will was nevertheless admitted to probate, Mr. Justice
Trent, speaking for the court, announcement the following pertinent
legal doctrines:
* * * There are many cases and authorities which we might
cite to show that the courts have repeatedly held that mere
weakness of mind and body, induced by age and disease do
not render a person incapable of making a will. The law
does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental
powers in order to execute a valid will. If such were the
legal standard few indeed would be the number of wills that
could meet such exacting requirements. The authorities,
both medical and legal are universal in the statement that
the question of mental capacity is one of degree and that
there are many graduations from the highest degree of
mental soundness to the lowest conditions of diseased
mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition
is as sacred as any other right which a person may exercise

24

SUCCESSION. SET 2.
and this right should be nullified unless mental incapacity
is established in a positive and conclusive manner. In
discussing the question of testamentary capacity, it is stated
in volume 28, page 70, of the American and English
Encyclopedia of Law that
'Contrary to the very prevalent lay impression perfect
soundness of mind is not essential to testamentary capacity.
A testator may be afflicted with a variety of mental
weakness, disorders or peculiarities and still be capable in
law of executing a valid will.' (See the numerous cases
there cited in support of this statement.)
The rule relating to testamentary capacity is stated in
Buswel on Insanity, section 365 and quoted with approval
in Campbell vs. Campbell (130 Ill. 466) as follows:
To constitute a sound and disposing mind, it is not
necessary that the mind shall be wholly unbroken
unimpaired or unshattered by disease or otherwise or that
the testator should be in the full possession of his reasoning
faculties.
In note, 1 Jarnan on Wills, 38, the rule is thus stated:
The question is not so much, what was the degree of
memory possessed by the testator as had, he a disposing
memory? Was he able to remember the property he was
about to bequeth the manner of distributing it and the object
of his bounty? In a word, were his mind and memory
sufficiently sound to enable him to know and understand
the business in which he was engaged at the time when he
executed his will.' (See authorities there cited)
In Wilson vs. Mitchell (101 Penn., 495), the following facts
appeared upon the trial of the case: The testator died at the
age of nearly 102 years. In his early years he was an
intelligent and well informed man. About seven years prior
to his death he suffered a paralytic stroke and from that
time his mind and memory were much enfeebled. He
became very dull of hearing and in consequence of the
shrinking of his brain he was affected with senile cataract
causing total blindness. He became filthy and obscene in
his habits, although formerly he was observant of the
proprieties of life. The court, in commenting upon the case,
said:
Neither age, nor sickness, nor extreme distress, nor debility
of body will affect the capacity to make a will, if sufficient
intelligence remains. The failure of memory is not
sufficient to create the incapacity, unless it be total or
extend to his immediate family to property. . . .
xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years

before he made the will and his physical and mental
weakness and defective memory were in striking contrast
with their strength in the meridian of his life. He was blind;
not deaf, but hearing impaired; his mind acted slowly, he
was forgetful of recent events, especially of names and
repeated questions in conversation; and sometimes, when
aroused from sleep or slumber, would seem bewildered. It
is not singular that some of those who had known him
when he was remarkable for vigor and intelligence are of
the opinion that his reason was so far gone that he was
incapable of making a will, although they never heard him
utter an irrational expression.
In the above case the will was sustained. In the case at bar
we might draw the same contract as was pictured by the
court in the case just quoted. . . .

The particular difference between all of the Philippine case which are
cited and the case at bar are that in none of the Philippine cases was
there any declaration of incomplicated and in none of them were the
facts quite as complicated as they are here. A case in point where the
will was contested, because the testator was not of sound and
disposing mind and memory and because at the time of the making of
the will he was acting under the undue influence of his brothers and
where he had a guardian when he executed his will, is Ames' Will
([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of
the court, in part said:
It is contended by contestant's counsel that on the day said
pretended will purports to have been executed, Lowell was
declared incompetent by a court which had jurisdiction of
the person and subject-matter and that the decree therein
appointing a guardian of his person and estate raises the
distable presumption that he did not possess sufficient
testamentary capacity at the time to overcome which
required evidence so strong as to leave no reasonable doubt
as to his capacity to make a valid will, and the testimony
introduced by the proponent being insufficient for that
purpose the court erred in admitting it to probate.
The appointment of a guardian of a person alleged to
be non compos mentis, by a court having jurisdiction must
necessarily create a presumption of the mental infirmity of
the ward; but such decree does not conclusively show that
the testamentary capacity of the person under guardianship
is entirely destroyed and the presumption thus created may
be overcome by evidence proving that such person at the
time he executed a will was in fact of sound and disposing
mind and memory: Stone vs. Damon, 12 Mass., 487; Breed
vs. Pratt, 18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37
N. W. 236).
The testimony shows that the testator retained a vivid
recollection of the contents of the books he had read and
studied when he was young but that he could not readily
recall to his mind the ordinary incidents of his later life.
The depth and intensity of mental impression always
depend upon and are measured by the degree of attention
given to the perception of truth, which demands reflection;
and hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it
manifest a want of power on concentration of the mind.
The aged live in the past and the impression retained in
their minds are those that were made in their younger days,
because at that period of their lives they were able to
exercise will power by giving attention. While the inability
of a person of advanced years to remember recent events
distinctly undoubtedly indicates a decay of the human
faculties, it does not conclusively establish senile dementia,
which is something more than a mere loss of mental power,
resulting from old age and is not only a feeble condition of
the mind but a derangement thereof. . . . The rule is settled
in this state that if a testator at the time he executes his will
understand the business in which he is engaged and has a
knowledge of his property and how he wishes to dispose of
it among those entitled to his bounty, he possess sufficient
testamentary capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.
xxx

xxx

xxx

It is contented by contestant's counsel that if Lowell at the

time he executed the pretended will, was not wholly
lacking in testamentary capacity, he was, in consequence of
age ill health, debility of body and infirmity of will power,
Andrew and Joseph having knowledge thereof took
advantage of his physical and mental condition and unduly
influenced him to device and bequeth his property in the
manner indicated, attempting thereby to deprive the
contestant of all interest therein except such as was given
her by statute. . . . Assuming that he was easily persuaded
and that his brothers and the persons employed by them to
care for him took advantage of his enfeebled condition and

25

SUCCESSION. SET 2.
prejudiced his mind against the contestant did such undue
influence render the will therefore executed void? . . .
When a will has been properly executed, it is the duty of
the courts to uphold it, if the testator possessed a sound and
disposing mind and memory and was free from restraint
and not acting under undue influence notwithstanding
sympathy for persons legally entitled to the testator's
bounty and a sense of innate justice might suggest a
different testamentary disposition.
Believing, as we do, that the findings of the circuit court
are supported by the weight of the testimony its decree is
affirmed.
Insofar as the law on testamentary capacity to make a will is
concerned and carrying alone one step further the question suggested
at the end of the presentation of the facts on the same subject a
resolution of the case comes down to this: Did Tomas Rodriguez on
January 3, 1924, possess sufficient mentality to make a will which
would meet the legal test regarding testamentary capacity and have
the proponents of the will carried successfully the burden of proof
and shown him to be of sound mind on that date?
II. UNDUE INFLUENCE
A. Facts. The will was attacked on the further ground of undue
influence exercised by the persons benefited in the will in
collaboration with others. The trial judge found this allegation to have
been established and made it one of the bases of his decision. it is
now for us to say if the facts justify this finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his
administrator. The latter subsequently became his guardian. There is
every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de
Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of
Rodriguez secured Maximino Mina to prepare the will, and it was
Luz Lopez de Bueno who appears to have gathered the witnesses and
physicians for the execution of the will. This faction of the Lopez
family was also a favor through the orders of Doctor Domingo as to
who could be admitted to see the patient.
The trial judge entertained the opinion that there existed "a
preconceived plan on the part of the persons who surrounded Tomas
Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, however, that
men of the standing of Judge Mina, Doctors Calderon, Domingo,
Herrera, and De Asis and Mr. Legarda would so demean themselves
and so fully their characters and reputation as to participate in a
scheme having for its purpose to delude and to betray an old man in
his age, rather named was acting according to the best of his ability to
assist in a legitimate act in a legitimate manner. Moreover,
considering the attitude of Tomas Rodriguez toward Margarita Lopez
and her husband and his apparent enmity toward them, it seems fairly
evident that even if the will had been made in previous years when
Rodriguez was more nearly in his prime, he would have prepared
somewhat a similar document.

legal test regarding testamentary capacity and have the proponents of

the will carried successfully the burden of proof and shown him to be
of sound mind on that date?
Two of the subscribing witnesses to the will, one a physician clearly
to the regular manner in which the will was executed and to the
testator's mental condition. The other subscribing witness, also, a
physician on the contrary testified to a fact which, if substantiated,
would require the court to disallow the will. The attending physician
and three other eminent members of the medical fraternity, who were
present at the execution of the will, expressed opinions entirely
favorable to the capacity of the testator. As against this we have the
professional speculations of three other equally eminent members of
the medical profession when the will was executed. The advantage on
those facts is all with those who offer the will for probate.
The will was short. It could easily be understood by a person in
physical distress. It was reasonable, that is, it was reasonable if we
take into account the evident prejustice of the testator against the
husband of Margarita Lopez.
With special reference of the definition of testamentary capacity, we
may say this: On January 3, 1924, Tomas Rodriguez, in our opinion
comprehended the nature of the transaction in which he was engaged.
He had two conferences with his lawyer, Judge Mina, and knew what
the will was to contain. The will was read to him by Mr. Legarda. He
signed the will and its two copies in the proper places at the bottom
and on the left margin. At that time the testator recollected the
property to be disposed of and the persons who would naturally be
supposed to have claims upon him While for some months prior to
the making of the will he had not manage his property he seem to
have retained a distinct recollection of what it consisted and of his
income. Occasionally his memory failed him with reference to the
names of his relatives. Ordinarily, he knew who they were, he seemed
to entertain a prediliction towards Vicente F. Lopez as would be
natural since Lopez was nearest in which the instrument distributed
the property naming the objects of his bounty. His conversations with
Judge Mina disclosed as insistence on giving all of his property to the
two persons whom he specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced
years, may have been physically decrepit, may have been weak in
intellect, may have suffered a loss of memory, may have had a
guardian and may have a been extremely eccentric, but he still
possessed the spark of reason and of life, that strength of mind to
form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity."
That in effect is the definite opinion which we reach after an
exhaustive and exhausting study of a tedious record, after weighing
the evidence for the oppositors, and after giving to the case the
serious consideration which it deserves.
The judgment of the trial court will be set aside and the will of Tomas
Rodriguez will be admitted to probate without special pronouncement
as to costs in this instance.

B. LAW. One of the grounds for disallowing a will is that it was

procured by undue and improper pressure and influence on the art of
the beneficiary or some other person for his benefit (Code of Civil
Procedure, sec., 634[4]). Undue influence, as here mentioned in
connection with the law of wills and as further mentioned in the Civil
Code (art. 1265), may be defined as that which compelled the testator
to do that which is against the will from fear the desire of peace or
from other feeling which is unable to resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGMENT
To restate the combined issued of fact and law in this case pertaining
to testamentary capacity: Did Tomas Rodriguez on January 3, 1924,
possess sufficient mentality to make a will which would meet the

26

SUCCESSION. SET 2.

27

SUCCESSION. SET 2.
G.R. No. L-24665

October 13, 1926

Estate of the deceased Isidra Abquilan. ATANASIO

ABQUILAN, petitioner-appellant,
vs.
FELICIANA ABQUILAN, opponent-appellee.
Simeon Bitanga and Vicente Sotto for appellant.
R. Nolan and Feria and La O for appellee.
STREET, J.:
This appeal has been brought to reverse an order of the Court of First
Instance of the Province of Occidental Negros, refusing to legalize an
instrument (Exhibit A) purporting to be the last will and testament of
Isidra Abquilan, deceased. It appears that the deceased left no forced
heirs, and her only heirs, in case of intestacy, are her brother,
Atanasio Abquilan, the proponent of the will, and Feliciana Abquilan,
a sister, who is the opponents.
Upon hearing the cause the trial court found that the document
propounded as the will of the deceased is apocryphal, that the
purported signatures of the deceased to the supposed will are
forgeries, and that the instrument in question was not executed by the
deceased. He therefore denied probate, and the proponent appealed.
We have carefully examined the evidence, and upon repeated perusal
of the appealed decision, we find that the conclusions of fact stated
therein are so completely in harmony with our own view of the case,
that no new exposition of the facts is necessary. A clear
preponderance of the evidence shows that on November 6, 1924, the
date when the will purports to have been executed, the supposed
testatrix was not in a condition such as to enable her to have
participated in the act, she being in fact at that time suffering from
paralysis to celebral hemorrhage in such degree as completely to
discapacitate her for intelligent participation in the act of making a
will. A careful comparison of the name of the testatrix as signed in
two places to the Exhibit A, with many of her authentic signatures
leads to the conclusion that the signatures to the supposed will were
made by some other person. Furthermore, the combined testimony of
Juan Serato and Alejandro Genito completely demonstrate in our
opinion that no will at all was made on November 6, the date
attributed to the questioned document, and that, instead an attempt
was made on the night of that day to fabricate another will, which
failed of completion because of the refusal of Alejandro Genito to be
party to the making of a will in which the testatrix took no part. The
instrument before us was undoubtedly fabricated later, probably on
November 7, at a time when the condition of the deceased was such
as to make rational participation on her part in the act of making a
will impossible.
The judgment appealed from will be affirmed, and it is so ordered,
with costs against the appellant. 1

28

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29

SUCCESSION. SET 2.
G.R. No. L-33592

March 31, 1931

Estate of the deceased Victorina Villaranda.

EUSEBIA LIM, petitioner-appellant,
vs.
JULIANA CHINCO, oppositor-appellee.
Perfecto Gabriel and Eusebio Orense for appellant.
Camus and Delgado for appellee.
STREET, J.:
This is a contest over the probate of a paper writing purporting to be
the will of Victorina Villaranda y Diaz, a former resident of the
municipality of Meycauayan, Province of Bulacan, who died in the
Hospital of San Juan de Dios, in the City of Manila, on June 9, 1929.
The deceased left no descendants or ascendants, and the document
produced as her will purports to leave her estate, consisting of
properties valued at P50,000, more or less, chiefly to three collateral
relatives, Eusebia, Crispina, and Maria, of the surname of Lim. This
instrument was offered for probate by Eusebia Lim, named in the
instrument as executrix Opposition was made by Juliana Chinco, a
full sister of the deceased. Upon hearing the cause the trial court
sustained the opposition and disallowed the will on the ground that
the testatrix did not have testamentary capacity at the time the
instrument purports to have been executed by her From this judgment
the proponent of the will appealed.
The deceased was a resident of Mercauayan, Province of Bulacan,
and was about 80 years of age at the time of her death. On the
morning of June 2, 1929, she was stricken with apoplexy, incident to
cerebral hemorrhage, and was taken in an unconscious condition,
seated in a chair, to her room. Doctor Geronimo Z. Gaanan, a local
physician of Meycauayan, visited the old lady, with whom he was
well acquianted, three or four times, the first visit having occurred
between 6 and 7 p. m. of June 3d. Upon examining the patient, he
found her insensible and incapable of talking or controlling her
movements. On the same day the parish priest called for the purpose
of administering the last rites of the church, and being unable to take
her confession, he limited himself to performing the office of extreme
unction. Doctor Isidoro Lim, of Manila, was also called upon to visit
the patient and he came to see her two or three times. With his
approval, it was decided to take the woman to the hospital of San
Juan de Dios in Manila, and on the morning of June 5, 1929, the
ambulance from this hospital arrived, in charge of Doctor Guillermo
Lopez del Castillo, a resident physician of the hospital. At about 11
c'clock a.m. on that day she was embarked on the ambulance and
taken to the hospital, where she died four days later.

condition and incapable of performing any conscious and valid act.

The testimony of Doctor Gaanan and Doctor Lopez del Castillo is
sufficient upon this point, and this testimony is well corroborated by
Paciana Diaz and Irene Ahorro. The first of these witnesses was the
one who chiefly cared for the deceased during her last illness in
Meycauayan until she was carried away to the hospital in Manila; and
the second was a neighbor, who was called in when the stroke of
apoplexy first occurred and who visited the patient daily until she
was removed from Meycauayan.
The testimony of these witnesses is convincing to the effect that the
patient was in a continuous state of coma during the entire period of
her stay in Meycauayan, subsequent to the attack, and that on the
forenoon of June 5, 1929, she did not have sufficient command of her
faculties to enable her to do any valid act. Doctor Lim, the physician
from Manila, testified for the proponent of the will. His testimony
tends to show that the patient was not suffering from cerebral
hemorrhage but from urmic trouble, and that, after the first attack,
the patient was much relieved and her mind so far cleared up that she
might have made a will on the morning of June 5th. The attorney
testified that he was able to communicate with the deceased when the
will was made, and that he read the instrument over to her clause by
clause and asked her whether it expressed her wishes. He says that
she made signs that enabled him to understand that she concurred in
what was written. But it is clear, even upon the statement of this
witness, that the patient was unable to utter intelligent speech. Upon
the authority of Perry vs. Elio(29 Phil., 134), the paper offered for
probate was properly disallowed.
The judgment appealed from will therefore be affirmed, and it is so
ordered, with costs against the appellant.

The purported will, which is the subject of this proceeding, was

prepared by Perfecto Gabriel, a practicing attorney of Manila, whose
wife appears to be related to the chief beneficiaries named in the will.
This gentlemen arrived upon the scene at 9 o'clock on the forenoon of
June 5, 1929. After informing himself of the condition of the testatrix,
he went into a room adjacent to that occupied by the patient and,
taking a sheet from an exercise book, wrote the instrument in
question. He then took it into the sick room for execution. With this
end in view Gabriel suggested to Doctor Lopez del Castillo that he
would be pleased to have Doctor Castillo sign as a witness, but the
latter excused himself for the reason that he considered the old lady
to be lacking in testamentary capacity. Another person present was
Marcos Ira, a first cousin of the deceased, and attorney Gabriel asked
him also whether or not he was willing to sign as one of the
witnesses. Ira replied in a discouraging tone, and the attorney turned
away without pressing the matter. In the end three persons served as
witnesses, all of whom were in friendly relations with the lawyer, and
two relatives of his wife. The intended testatrix was not able to affix
her signature to the document, and it was signed for her by the
attorney.
The vital question in the case is whether the supposed testatrix had
testamentary capacity at the time the paper referred to was signed.
Upon this point we are of the opinion, as was the trial judge, that the
deceased, on the morning of June 5, 1929, was in a comatose

30

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31

SUCCESSION. SET 2.
G.R. No. L-6322

February 21, 1912

DOLORES AVELINO, as administratrix of the estate of Pascual

de la Cruz, plaintiff-appellee,
vs.
VICTORIANA DE LA CRUZ, defendant-appellant.
Buencamino, Diokno, Mapa, Buencamino, Jr. Platon & Lontoc for
appellant.
Alfonso Mendoza for appellee.
JOHNSON, J.:
The present is an appeal from an order of the Honorable George N.
Hurd, judge of the Court of First Instance of the city of Manila, in
which he had legalized the will of the said Pascual de la Cruz,
deceased.
The contention of the opponent is that at the time of the making of
the will the said Pascual de la Cruz was blind and had been for a
number of years, and was incompetent to make the will in question.
Against this contention of the opponent, all of the witnesses who
signed the will were called as witnesses, and each declared that the
deceased was of sound mind at the time said will was made and fully
understood its contents and signed the same in their presence and that
they each signed the will in the presence of each other, as well as in
the presence of the deceased.
The appellant attempted to show that the deceased was incompetent
to make his will because he was blind at the time the same was
executed and had been for several years theretofore. There is
absolutely no proof to show that the deceased was incapacitated at
the time he executed his will. No presumption of incapacity can arise
from the mere fact that he was blind. The only requirement of the law
as to the capacity to make a will is that the person shall be of age and
of sound mind and memory. (Sec. 614, Code of Procedure in Civil
Actions.) Section 620 of the same code prohibits blind persons from
acting as witnesses in the execution of wills, but no limitation is
placed upon the testamentary capacity, except age and soundness of
mind.
In our opinion the record contains nothing which justifies the
modification of the order made legalizing the will in the present case.
The order of the lower court admitting to probate and legalizing the
will in question is therefore hereby affirmed with costs.

32

SUCCESSION. SET 2.

33

SUCCESSION. SET 2.
G.R. No. L-23483

December 18, 1925

In re will of Pedro Tablizo, deceased. ANTONIO AMATA and

FELIPE ALMOJUELA, petitioners-appellants,
vs.
JUANA TABLIZO, ET AL., objectors-appellees.
Gregorio Perfecto for appellants.
Domingo Imperial for appellees.
VILLA-REAL, J.:
This is a proceeding commenced in the Court of First Instance of
Albay by a petition filed by Antonio Amata and Felipe Almojuela,
praying for the probate of the last will and testament of the deceased
Pedro Tablizo, and the issuance of letters of administration to the
petitioners.
Juana Tablizo and others opposed the probate of the will applied for
on the following grounds: "(1) That it was not signed by the
witnesses, nor executed by the deceased Pedro Tablizo, as prescribed
by the Code of Civil Procedure; (2) that the deceased Pedro Tablizo
was not habitually of sound mind, but on the contrary, was
unconscious at the time of the execution of said document; (3) that
said document was not signed by the testator freely and voluntarily,
nor did he intend it to be his will on the date when it was executed;
and (4) that said document was maliciously and fraudulently prepared
by the two beneficiaries Antonio Amata and Felipe Almojuela,
causing a date to appear thereon which is not the true date of its
execution." And they prayed that the petition be denied, and it be held
that Pedro Tablizo died intestate, and Tomas Tablizo be appointed
special administrator of the estate left by said deceased.
After trial, whereat evidence was introduced by the petitioners, as
well as the opponents, the court below entered an order declaring that
the deceased Pedro Tablizo was unconscious when the document
Exhibit A was executed, and that said document did not contain the
last will of the testator, and denying the probate thereof as the last
will and testament of said deceased; and declaring, further, that Pedro
Tablizo died intestate. From this order the petitioners took an appeal
in due time and form, assigning the following supposed errors as
committed by the trial court, to wit: (1) Its declaration that it
entertains a reasonable suspicion that the document Exhibit A, the
testament of the deceased Pedro Tablizo, does not contain the will of
the testator; (2) its refusal to admit the will Exhibit A to probate and
its finding that Pedro Tablizo died intestate; and (3) it failure to
render judgment against the opponents for the costs of the action.
The petitioners attempted to prove that the deceased Pedro Tablizo
was 82 years old and was near sighted. Beginning May 4, 1924, he
was confined to his bed by reason senile weakness and could not
stand up. On June 2 and 3, 1924, he sent for one Juan Agunday to tell
him to draw his will, but the latter excused himself, saying that it was
a delicate and hard task. On the evening of June 3,1924, Pedro
Tablizo caused one to look for Alipio Arcilla, but the latter could not
be found, having gone to Dato. In view thereof, he ordered that
Felipe Almojuela be called. As soon as the latter arrived, which took
place at about 3 o'clock in the evening, Pedro Tablizo asked Antonio
Amata to bring him the list of his real properties, and to read one by
one the items therein for the purpose of separating the paraphernal
property of his wife form his own and the conjugal property. Antonio
Amata read them one by one in the presence of Mariano Arcilla,
husband of Juana Tablizo, of Felipe Almojuela and of Pedro Tablizo,
giving their boundaries, kinds, areas and values. As Antonio Amata
was mentioning each parcel, Pedro Tablizo was telling him to whom
it must be alloted. When he said, "that is Incay's" (wife of Pedro
Tablizo), he marked the item with the word "Incay," and so on, with
the words "Pedro," if he said it was his; "conjugal" if he said it was
conjugal; and "own cultivation" if he said it was cultivated and
occupied by him. There arose certain doubts as to the boundaries of
one of the lands and his brother-in-law, Mariano Arcilla made them
clear. At 6 o'clock in the evening, the reading of the list was finished,
and Pedro Tablizo asked Antonio Amata and his brother-in-law,
Mariano Arcilla, as to what they thought about the will being drawn

by Felipe Almojuela. Mariano Arcilla answered that he agreed that it

be written by Felipe Almojuela, since no one else could do it and
Alipio Arcilla was not in the town. At 6:30 Pedro Tablizo began to
dictate his will to Felipe Almojuela, in the presence of his wife, of
Mariano Arcilla and Antonio Amata, having finished the same at
about 8 o'clock in the evening. While Felipe Almojuela was writing a
clean copy of the rough draft in his house, the testator told Antonio
Amata to look for Vicente Arcilla and Gregorio Sarmiento who were
to act as witnesses to the will, together with Gregorio Sarmiento who
was already in the house. Felipe Almojuela finished typewriting the
will at 12 o'clock in that night and took it to the house of the testator,
who, in the presence of Mariano Dominguez, Vicente Arcilla,
Gregorio Sarmiento, Cipriano Suscito, Felipe Almojuela, Francisco
Gianan, Eufrosina Tablizo and Antonio Amata, had Mariano
Dominguez, "Alas! Nitoy, I will no longer be able to help you in the
next election." Upon the termination of the reading of the will, and
after stating that it was his last will, Pedro Tablizo asked for it in
order to sign the same. It was 1 o'clock in the morning of June 4,
1924. Gregorio Sarmiento seated Pedro Tablizo upon the bed and has
been holding him, while Antonio Amata was taking a book of music,
placing the will Exhibit A upon it, and presenting it to the testator for
his signature. As the latter could not longer see, Eufrosina Tablizo,
niece of the testator and wife of Antonio Amata, placed the pen
between his fingers, held his hand and put the point of the pen on the
place where he had write his signature. The testator signed unaided of
the left margin of each of the pages and at the bottom of the will in
the presence of all the witnesses, who did the same in the presence of
each other and of the testator. At 10 o'clock approximately in the
evening of June 4, 1924, Pedro Tablizo sent for Father Cecilio Penilla
and confessed. Before the confession, he had been talking with said
priest. On the 9th day of June, 1924, Serapia Torcelino and her
husband went to the house of the deceased looking for a carabao to
purchase, and Pedro Tablizo ordered that the carabao called Tibayong
be sold. On the 10th day of the same month and year, Fathers Andres
Tablizo and Mariano Surtida, paid a visit to the testator and the latter
talked with them. On the 12th day of the same month and year, Father
Cecilio Penilla saw him for the last time, and on said date, as on June
4, he found him lying down on his bed, being unable to move, but he
could speak, and prayed correctly, first in an audible voice and then
in low voice. In his two confessions, he related his spiritual life
coherently and without confusion. Antonio Amata has been living
with his wife in the house of the testator, taking care of him and
helping him manage his estate. It was he who attended to the
payment of the land tax. Felipe Almojuela was reared by Pedro
Tablizo since he was a child, having taken him from the possession of
his parents and kept him in his house until he married. Pedro Tablizo
died on June 20, 1924.
The opponents, who are all brothers and sisters and children of
brothers and sisters of the testator, attempted to prove that the will
was clandestinely prepared by Antonio Amata and Felipe Almojuela
and signed on the midnight of June 19, 1924, Pedro Tablizo then
lying down on his bed, weakened by old age and his sickness, lying
down with his mouth upward and open, the eyes closed and the feet
and arms extended, being unable to move, see, speak or know those
surrounding him, it being necessary that Antonio Amata should, as he
did, place the pen in his fingers, hold him by the arm and guide him
while signing the will upon a pillow.lawphi1.net
The only questions to be decided in this appeal are : (1) when was the
will made and signed?; (2) who drew and signed it?; and (3) was the
mind of the testator perfectly sound when he made and signed the
will?
As to the first question, the preponderance of the evidence shows that
the testator dictated to Felipe Almojuela the rough draft of his will,
the latter having typewritten it clean, and finished the drawing thereof
at midnight. Notwithstanding the distrust with which the trial judge
received the testimony of the petitioners, as they had intervened in
the preparation of the will, and are the ones most benefited, he could
not help giving credit to their testimony and that of their witnesses
upon the date when the will was made and signed, that is, from 3
o'clock in the evening of the third day up to 1 o'clock in the morning
of the 4th June, 1924. In view of the fact that the testator did not die

34

SUCCESSION. SET 2.
until June 20, 1924, in order to make credible the theory that the
testator was unconscious when his will was executed and signed.
Turning now to the second question, the very witness for the
opponents, Father Cecilio Penilla, testified that at 10 o'clock
approximately in the night of June 4, 1924, the date when the will
was signed, and on the 12th day of the same month and year, the
testator had sent for him in order to confess and on both occasions he
intelligently and intelligibly talked with him, relating his spiritual life
coherently and clearly although he was lying down on his bed and
could not move or stand up without assistance. It is a fact also
uncontroverted that on June 9, 1924, he ordered a carabao sold,
designating it by its name Tibayong.itc-alf On the 10th day of the
same month, he received the visit of Father Andres Tablizo and
Mariano Surtida with whom he has been conversing. All these prior,
coetaneous and subsequent circumstances show that Pedro Tablizo
was perfectly of sound mind at the time of making his last will.
With regard to the third question, we have already seen that the will
was made on June 3, 1924, and signed immediately thereafter at an
early hour in the morning of the 4th day of the same month and year.
The date of the execution of the will is important in the determination
of the mental condition of the testator. If the opponents and their
witnesses testified falsely upon this essential point, under the rule
falsus in uno falsus in omnibus, they are not entitled to any credit
upon the other essential points of their testimony, unless corroborated
by other witnesses whose credibility is beyond suspicion. On the
other hand, the testimony of the petitioners and their witnesses upon
the making if the will is so clear, positive and consistent, and the
succession of facts upon which they testified and their incidents is so
natural, that it cannot but convince any one who should read it
without bias. If, as above stated, the petitioners and their witnesses
are entitled to a greater credit that the opponents and their witnesses,
and if, as above seen, the testator was in perfectly sound mental
condition, there can be no doubt that it was the testator who signed
his signature on the will placed upon a book of music. The testimony
of the opponents and their witnesses is improbable that the will was
signed upon a pillow. A pillow being soft, as it is, cannot serve as a
support for writing purposes.
Where the testator is in perfectly sound mental condition, neither old
age, nor ill health, nor the fact that somebody had to guide his hand in
order that he could sign, is sufficient to invalidate his will. (28 R. C.
L., pars. 44 and 68; L. R. A. [1915 D]. page 906; 35 L. R. A., 102.)
For the foregoing reasons, we are of the opinion that the order
appealed from must be, as is hereby, revoked with the costs against
the appellees, and it is ordered that the will of Pedro Tablizo be
admitted to probate. So ordered.

35

SUCCESSION. SET 2.
G.R. No. 157451 December 16, 2005

I, PLACIDO VALMONTE, of legal age, married to Josefina

Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati,
Metro Manila, 83 years of age and being of sound and disposing
mind and memory, do hereby declare this to be my last will and
testament:

LETICIA VALMONTE ORTEGA, Petitioner,

vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests
the burden of showing why it should not be allowed. In the present
case, petitioner has failed to discharge this burden satisfactorily. For
this reason, the Court cannot attribute any reversible error on the part
of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review 1 under Rule 45 of the Rules
of Court, seeking to reverse and set aside the December 12, 2002
Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals
(CA) in CA-GR CV No. 44296. The assailed Decision disposed as
follows:
"WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place
judgment is rendered approving and allowing probate to the said last
will and testament of Placido Valmonte and ordering the issuance of
letters testamentary to the petitioner Josefina Valmonte. Let this case
be remanded to the court a quo for further and concomitant
proceedings."4
The assailed Resolution
Reconsideration.

denied

petitioners

Motion

for

The Facts
The facts were summarized in the assailed Decision of the CA, as
follows:
"x x x: Like so many others before him, Placido toiled and lived for a
long time in the United States until he finally reached retirement. In
1980, Placido finally came home to stay in the Philippines, and he
lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca
Valmonte and titled in their names in TCT 123468. Two years after
his arrival from the United States and at the age of 80 he wed
Josefina who was then 28 years old, in a ceremony solemnized by
Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more
than two years of wedded bliss, Placido died on October 8, 1984 of a
cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English
and consisting of two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first page contains the
entire testamentary dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page by the testator and
on the left hand margin by the three instrumental witnesses. The
second page contains the continuation of the attestation clause and
the acknowledgment, and was signed by the witnesses at the end of
the attestation clause and again on the left hand margin. It provides in
the body that:

1. It is my will that I be buried in the Catholic Cemetery, under the

auspices of the Catholic Church in accordance with the rites and said
Church and that a suitable monument to be erected and provided my
by executrix (wife) to perpetuate my memory in the minds of my
family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila, described and covered by TCT No.
123468 of the Register of Deeds of Pasig, Metro-Manila registered
jointly as co-owners with my deceased sister (Ciriaca Valmonte),
having share and share alike;
b. 2-storey building standing on the above-described property, made
of strong and mixed materials used as my residence and my wife and
located at No. 9200 Catmon Street, Makati, Metro Manila also
covered by Tax Declaration No. A-025-00482, Makati, MetroManila, jointly in the name of my deceased sister, Ciriaca Valmonte
and myself as co-owners, share and share alike or equal co-owners
thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA which is
in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife, Josefina
C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix
of my last will and testament, and it is my will that said executrix be
exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day
of June 1983 in Quezon City, Philippines.
"The allowance to probate of this will was opposed by Leticia on the
grounds that:
1. Petitioner failed to allege all assets of the testator, especially those
found in the USA;
2. Petitioner failed to state the names, ages, and residences of the
heirs of the testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the
alleged execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure
on the part of the petitioner and/or her agents and/or assistants; and/or

LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN

THE NAME OF THE LORD AMEN:

36

SUCCESSION. SET 2.
7. Signature of testator was procured by fraud, or trick, and he did not
intend that the instrument should be his will at the time of affixing his
signature thereto;
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared and
notarized the will, and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition,
the oppositor Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived
in her parents house at Salingcob, Bacnotan, La Union but they came
to Manila every month to get his $366.00 monthly pension and stayed
at the said Makati residence. There were times though when to shave
off on expenses, the testator would travel alone. And it was in one of
his travels by his lonesome self when the notarial will was made. The
will was witnessed by the spouses Eugenio and Feliza Gomez, who
were their wedding sponsors, and by Josie Collado. Josefina said she
had no knowledge of the existence of the last will and testament of
her husband, but just serendipitously found it in his attache case after
his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the executrix in
the said will. To her estimate, the value of property both real and
personal left by the testator is worth more or less P100,000.00.
Josefina declared too that the testator never suffered mental infirmity
because despite his old age he went alone to the market which is two
to three kilometers from their home cooked and cleaned the kitchen
and sometimes if she could not accompany him, even traveled to
Manila alone to claim his monthly pension. Josefina also asserts that
her husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the
testators will, testified that it was in the first week of June 1983
when the testator together with the three witnesses of the will went to
his house cum law office and requested him to prepare his last will
and testament. After the testator instructed him on the terms and
dispositions he wanted on the will, the notary public told them to
come back on June 15, 1983 to give him time to prepare it. After he
had prepared the will the notary public kept it safely hidden and
locked in his drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were
instructed by his wife to come back on August 9, 1983, and which
they did. Before the testator and his witnesses signed the prepared
will, the notary public explained to them each and every term thereof
in Ilocano, a dialect which the testator spoke and understood. He
likewise explained that though it appears that the will was signed by
the testator and his witnesses on June 15, 1983, the day when it
should have been executed had he not gone out of town, the formal
execution was actually on August 9, 1983. He reasoned that he no
longer changed the typewritten date of June 15, 1983 because he did
not like the document to appear dirty. The notary public also testified
that to his observation the testator was physically and mentally
capable at the time he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony of the
notary public, and testified that the testator went alone to the house of
spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and
requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were told to return on June
15, 1983; that they returned on June 15, 1983 for the execution of the
will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will

in question in their presence while he was of sound and disposing

mind and that he was strong and in good health; that the contents of
the will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and signed
the will in the presence of the testator and of each other. And that
during the execution, the testators wife, Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit alone
because aside from her there are other children from the siblings of
Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old
and was no longer of sound mind. She knew whereof she spoke
because in 1983 Placido lived in the Makati residence and asked
Leticias family to live with him and they took care of him. During
that time, the testators physical and mental condition showed
deterioration, aberrations and senility. This was corroborated by her
daughter Mary Jane Ortega for whom Placido took a fancy and
wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the
execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution of the
will as he was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly
disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the
notary public and the subscribing witnesses who had acknowledged
the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It added
that his "sexual exhibitionism and unhygienic, crude and impolite
ways"6 did not make him a person of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to great
respect.
"II.
Whether or not the signature of Placido Valmonte in the subject will
was procured by fraud or trickery, and that Placido Valmonte never
intended that the instrument should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the
time he allegedly executed the subject will."8

37

SUCCESSION. SET 2.
In short, petitioner assails the CAs allowance of the probate of the
will of Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a
Petition for Review under Section 1 of Rule 45 of the Rules of Court.
As an exception, however, the evidence presented during the trial
may be examined and the factual matters resolved by this Court
when, as in the instant case, the findings of fact of the appellate court
differ from those of the trial court.9
The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should be
allowed. The law lays down the procedures and requisites that must
be satisfied for the probate of a will. 10 Verily, Article 839 of the Civil
Code states the instances when a will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence
of fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto."
In the present case, petitioner assails the validity of Placido
Valmontes will by imputing fraud in its execution and challenging
the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in
the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of
the will.
Petitioner contends that it was "highly dubious for a woman at the
prime of her young life [to] almost immediately plunge into marriage
with a man who [was] thrice her age x x x and who happened to be
[a] Fil-American pensionado,"11 thus casting doubt on the intention of

respondent in seeking the probate of the will. Moreover, it

supposedly "defies human reason, logic and common
experience"12 for an old man with a severe psychological condition to
have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It may be
of such character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will which, but
for the fraud, he would not have made."13
We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution. 14 The
burden to show otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud. 15 Unfortunately in this
case, other than the self-serving allegations of petitioner, no evidence
of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not
affect the due execution of a will. 16 That the testator was tricked into
signing it was not sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his junior, as the
sole beneficiary; and disregarded petitioner and her family, who were
the ones who had taken "the cudgels of taking care of [the testator] in
his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the
document, "because the law does not even require that a [notarial]
will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who must also
attest to it in the presence of the testator and of one
another.19Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. 20 In any event, we agree
with the CA that "the variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental
witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as
quoted by the CA -- are reproduced respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15
when the testator and his witnesses were supposed to be in your
office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your
house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when
the document was acknowledged?

38

SUCCESSION. SET 2.
A Yes sir.
Q What about the date when the testator and the three witnesses
affixed their respective signature on the first and second pages of
exhibit C?

Q And on August 9, 1983 did you go back to the house of Atty.

Sarmiento?
A Yes, Sir.
Q For what purpose?

A On that particular date when it was acknowledged, August 9, 1983.

A Our purpose is just to sign the will.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the attestation
clause?
A Because I do not like anymore to make some alterations so I put it
in my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15,
1983, whereas in the acknowledgement it is dated August 9, 1983,
will you look at this document and tell us this discrepancy in the
date?

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no showing that
the witnesses of the proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three subscribing
witnesses and the notary are credible evidence of its due
execution.23 Their testimony favoring it and the finding that it was
executed in accordance with the formalities required by law should
be affirmed, absent any showing of ill motives. 24
Capacity to Make a Will

A We went to Atty. Sarmiento together with Placido Valmonte and the

two witnesses; that was first week of June and Atty. Sarmiento told us
to return on the 15th of June but when we returned, Atty. Sarmiento
was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed,
who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25,
1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento,
three times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty. Sarmiento and
Placido Valmonte about the last will and testament. After that what
they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When
we returned on June 15, Atty. Sarmiento was not there so we were not
able to sign it, the will. That is why, for the third time we went there
on August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August
9, 1983.

In determining the capacity of the testator to make a will, the Civil

Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or shattered by disease, injury or other
cause.
"It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind,
in the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it
during a lucid interval."
According to Article 799, the three things that the testator must have
the ability to know to be considered of sound mind are as follows: (1)
the nature of the estate to be disposed of, (2) the proper objects of the
testators bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the
time of the execution of his will.
It must be noted that despite his advanced age, he was still able to
identify accurately the kinds of property he owned, the extent of his
shares in them and even their locations. As regards the proper objects
of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives
from the will did not affect its formal validity. There being no
showing of fraud in its execution, intent in its disposition becomes
irrelevant.

39

SUCCESSION. SET 2.
Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA,25 which held thus:
"Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity, and
that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind,
or partial imbecility from disease of body, or from age, will not
render a person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and
how or to whom he is disposing of his property. To constitute a sound
and disposing mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person
shall actually be insane or of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision
and Resolution of the Court of Appeals areAFFIRMED. Costs
against petitioner.
SO ORDERED.

40

SUCCESSION. SET 2.
G.R. No. 174489

April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR,

ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA
A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL
TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.
DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly
establish that the decedent was not of sound and disposing mind at
the time of the execution of said will. Otherwise, the state is dutybound to give full effect to the wishes of the testator to distribute his
estate in the manner provided in his will so long as it is legally
tenable.1
Before us is a Petition for Review on Certiorari 2 of the June 15, 2006
Decision3 of the Court of Appeals (CA) in CA-G.R. CV No. 80979
which reversed the September 30, 2003 Decision 4 of the Regional
Trial Court (RTC), Branch 52, Guagua, Pampanga in Special
Proceedings No. G-1186. The assailed CA Decision granted the
petition for probate of the notarial will of Paciencia Regala
(Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be
impressed with merit, the decision in SP. PROC. NO. G-1186 dated
30 September 2003, is hereby SET ASIDE and a new one entered
GRANTING the petition for the probate of the will of PACIENCIA
REGALA.
SO ORDERED.5
Also assailed herein is the August 31, 2006 CA Resolution 6 which
denied the Motion for Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead
affirm the Decision of the RTC which disallowed the notarial will of
Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and
testament entitled "Tauli Nang Bilin o Testamento Miss Paciencia
Regala"7 (Will) in the Pampango dialect on September 13, 1981. The
Will, executed in the house of retired Judge Ernestino G. Limpin
(Judge Limpin), was read to Paciencia twice. After which, Paciencia
expressed in the presence of the instrumental witnesses that the
document is her last will and testament. She thereafter affixed her
signature at the end of the said document on page 3 8 and then on the
left margin of pages 1, 2 and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra.
Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado
(Faustino). The three attested to the Wills due execution by affixing
their signatures below its attestation clause 10 and on the left margin of
pages 1, 2 and 4 thereof, 11 in the presence of Paciencia and of one
another and of Judge Limpin who acted as notary public.

wife Corazon F. Laxa and their children Luna Lorella Laxa and
Katherine Ross Laxa, thus:
xxxx
Fourth - In consideration of their valuable services to me since then
up to the present by the spouses LORENZO LAXA and CORAZON
F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my
properties enumerated in parcels 1 to 5 unto the spouses LORENZO
R. LAXA and CORAZON F. LAXA and their children, LUNA
LORELLA LAXA and KATHERINE LAXA, and the spouses
Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos,
presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and
their children, LUNA LORELLA and KATHERINE ROSS LAXA,
who are still not of legal age and living with their parents who would
decide to bequeath since they are the children of the spouses;
xxxx
[Sixth] - Should other properties of mine may be discovered aside
from the properties mentioned in this last will and testament, I am
also bequeathing and giving the same to the spouses Lorenzo R. Laxa
and Corazon F. Laxa and their two children and I also command them
to offer masses yearly for the repose of my soul and that of D[]a
Nicomeda Regala, Epifania Regala and their spouses and with respect
to the fishpond situated at San Antonio, I likewise command to fulfill
the wishes of D[]a Nicomeda Regala in accordance with her
testament as stated in my testament. x x x12
The filial relationship of Lorenzo with Paciencia remains undisputed.
Lorenzo is Paciencias nephew whom she treated as her own son.
Conversely, Lorenzo came to know and treated Paciencia as his own
mother.13 Paciencia lived with Lorenzos family in Sasmuan,
Pampanga and it was she who raised and cared for Lorenzo since his
birth. Six days after the execution of the Will or on September 19,
1981, Paciencia left for the United States of America (USA). There,
she resided with Lorenzo and his family until her death on January 4,
1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27,
2000, Lorenzo filed a petition 14 with the RTC of Guagua, Pampanga
for the probate of the Will of Paciencia and for the issuance of Letters
of Administration in his favor, docketed as Special Proceedings No.
G-1186.
There being no opposition to the petition after its due publication, the
RTC issued an Order on June 13, 2000 15allowing Lorenzo to present
evidence on June 22, 2000. On said date, Dra. Limpin testified that
she was one of the instrumental witnesses in the execution of the last
will and testament of Paciencia on September 13, 1981. 16 The Will
was executed in her fathers (Judge Limpin) home office, in her
presence and of two other witnesses, Francisco and Faustino. 17 Dra.
Limpin positively identified the Will and her signatures on all its four
pages.18 She likewise positively identified the signature of her father
appearing thereon.19 Questioned by the prosecutor regarding Judge
Limpins present mental fitness, Dra. Limpin testified that her father
had a stroke in 1991 and had to undergo brain surgery. 20 The judge
can walk but can no longer talk and remember her name. Because of
this, Dra. Limpin stated that her father can no longer testify in court. 21

Childless and without any brothers or sisters, Paciencia bequeathed

all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his

41

SUCCESSION. SET 2.
The following day or on June 23, 2000, petitioner Antonio Baltazar
(Antonio) filed an opposition22 to Lorenzos petition. Antonio averred
that the properties subject of Paciencias Will belong to Nicomeda
Regala Mangalindan, his predecessor-in-interest; hence, Paciencia
had no right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by
petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A.
Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and
Antonio
L.
Mangalindan
filed
a
Supplemental
Opposition24 contending that Paciencias Will was null and void
because ownership of the properties had not been transferred and/or
titled to Paciencia before her death pursuant to Article 1049,
paragraph 3 of the Civil Code. 25 Petitioners also opposed the issuance
of Letters of Administration in Lorenzos favor arguing that Lorenzo
was disqualified to be appointed as such, he being a citizen and
resident of the USA.26 Petitioners prayed that Letters of
Administration be instead issued in favor of Antonio.27
Later still on September 26, 2000, petitioners filed an Amended
Opposition28 asking the RTC to deny the probate of Paciencias Will
on the following grounds: the Will was not executed and attested to in
accordance with the requirements of the law; that Paciencia was
mentally incapable to make a Will at the time of its execution; that
she was forced to execute the Will under duress or influence of fear
or threats; that the execution of the Will had been procured by undue
and improper pressure and influence by Lorenzo or by some other
persons for his benefit; that the signature of Paciencia on the Will was
forged; that assuming the signature to be genuine, it was obtained
through fraud or trickery; and, that Paciencia did not intend the
document to be her Will. Simultaneously, petitioners filed an
Opposition and Recommendation29 reiterating their opposition to the
appointment of Lorenzo as administrator of the properties and
requesting for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order 30 denying the requests
of both Lorenzo and Antonio to be appointed administrator since the
former is a citizen and resident of the USA while the latters claim as
a co-owner of the properties subject of the Will has not yet been
established.
Meanwhile, proceedings on the petition for the probate of the Will
continued. Dra. Limpin was recalled for cross-examination by the
petitioners. She testified as to the age of her father at the time the
latter notarized the Will of Paciencia; the living arrangements of
Paciencia at the time of the execution of the Will; and the lack of
photographs when the event took place. 31
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico)
also took the witness stand. Monico, son of Faustino, testified on his
fathers condition. According to him his father can no longer talk and
express himself due to brain damage. A medical certificate was
presented to the court to support this allegation. 32
For his part, Lorenzo testified that: from 1944 until his departure for
the USA in April 1980, he lived in Sasmuan, Pampanga with his
family and his aunt, Paciencia; in 1981 Paciencia went to the USA
and lived with him and his family until her death in January 1996; the
relationship between him and Paciencia was like that of a mother and
child since Paciencia took care of him since birth and took him in as
an adopted son; Paciencia was a spinster without children, and
without brothers and sisters; at the time of Paciencias death, she did
not suffer from any mental disorder and was of sound mind, was not
blind, deaf or mute; the Will was in the custody of Judge Limpin and
was only given to him after Paciencias death through Faustino; and
he was already residing in the USA when the Will was
executed.33 Lorenzo positively identified the signature of Paciencia in

three different documents and in the Will itself and stated that he was
familiar with Paciencias signature because he accompanied her in
her transactions.34 Further, Lorenzo belied and denied having used
force, intimidation, violence, coercion or trickery upon Paciencia to
execute the Will as he was not in the Philippines when the same was
executed.35 On cross-examination, Lorenzo clarified that Paciencia
informed him about the Will shortly after her arrival in the USA but
that he saw a copy of the Will only after her death. 36
As to Francisco, he could no longer be presented in court as he
already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were
first cousins.37 She claimed to have helped in the household chores in
the house of Paciencia thereby allowing her to stay therein from
morning until evening and that during the period of her service in the
said household, Lorenzos wife and his children were staying in the
same house.38 She served in the said household from 1980 until
Paciencias departure for the USA on September 19, 1981. 39
On September 13, 1981, Rosie claimed that she saw Faustino bring
"something" for Paciencia to sign at the latters house. 40 Rosie
admitted, though, that she did not see what that "something" was as
same was placed inside an envelope. 41 However, she remembered
Paciencia instructing Faustino to first look for money before she
signs them.42 A few days after or on September 16, 1981, Paciencia
went to the house of Antonios mother and brought with her the said
envelope.43 Upon going home, however, the envelope was no longer
with Paciencia.44 Rosie further testified that Paciencia was referred to
as "magulyan" or "forgetful" because she would sometimes leave her
wallet in the kitchen then start looking for it moments later. 45 On
cross examination, it was established that Rosie was neither a doctor
nor a psychiatrist, that her conclusion that Paciencia was "magulyan"
was based on her personal assessment, 46 and that it was Antonio who
requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia was his
aunt.48 He identified the Will and testified that he had seen the said
document before because Paciencia brought the same to his mothers
house and showed it to him along with another document on
September 16, 1981.49 Antonio alleged that when the documents were
shown to him, the same were still unsigned.50 According to him,
Paciencia thought that the documents pertained to a lease of one of
her rice lands,51 and it was he who explained that the documents were
actually a special power of attorney to lease and sell her fishpond and
other properties upon her departure for the USA, and a Will which
would transfer her properties to Lorenzo and his family upon her
death.52 Upon hearing this, Paciencia allegedly uttered the following
words: "Why will I never [return], why will I sell all my properties?"
Who is Lorenzo? Is he the only [son] of God? I have other relatives
[who should] benefit from my properties. Why should I die
already?"53 Thereafter, Antonio advised Paciencia not to sign the
documents if she does not want to, to which the latter purportedly
replied, "I know nothing about those, throw them away or it is up to
you. The more I will not sign them." 54 After which, Paciencia left the
documents with Antonio. Antonio kept the unsigned documents
and eventually turned them over to Faustino on September 18,
1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision 56 denying the
petition thus:

42

SUCCESSION. SET 2.
WHEREFORE, this court hereby (a) denies the petition dated April
24, 2000; and (b) disallows the notarized will dated September 13,
1981 of Paciencia Regala.
SO ORDERED.57
The trial court gave considerable weight to the testimony of Rosie
and concluded that at the time Paciencia signed the Will, she was no
longer possessed of sufficient reason or strength of mind to have
testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the
probate of the Will of Paciencia. The appellate court did not agree
with the RTCs conclusion that Paciencia was of unsound mind when
she executed the Will. It ratiocinated that "the state of being
magulyan does not make a person mentally unsound so [as] to
render [Paciencia] unfit for executing a Will."59 Moreover, the
oppositors in the probate proceedings were not able to overcome the
presumption that every person is of sound mind. Further, no concrete
circumstances or events were given to prove the allegation that
Paciencia was tricked or forced into signing the Will. 60
Petitioners moved for reconsideration 61 but the motion was denied by
the CA in its Resolution62 dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on
Certiorari ascribing upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED WHEN IT ALLOWED THE PROBATE OF
PACIENCIAS WILL DESPITE RESPONDENTS
UTTER FAILURE TO COMPLY WITH SECTION 11,
RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN MAKING CONCLUSIONS NOT IN
ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN RULING THAT PETITIONERS FAILED TO
PROVE THAT PACIENCIA WAS NOT OF SOUND
MIND AT THE TIME THE WILL WAS ALLEGEDLY
EXECUTED63
The pivotal issue is whether the authenticity and due execution of the
notarial Will was sufficiently established to warrant its allowance for
probate.
Our Ruling
We deny the petition.

Faithful compliance with the formalities laid down by law is apparent

from the face of the Will.
Courts are tasked to determine nothing more than the extrinsic
validity of a Will in probate proceedings. 64 This is expressly provided
for in Rule 75, Section 1 of the Rules of Court, which states:
Rule 75
Production of Will. Allowance of Will Necessary.
Section 1. Allowance necessary. Conclusive as to execution. No
will shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.
Due execution of the will or its extrinsic validity pertains to whether
the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.65 These formalities
are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the Office of the
Clerk of Court.
Here, a careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures of
the testatrix, Paciencia, her instrumental witnesses and the notary
public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and
her instrumental witnesses signed the Will in the presence of one
another and that the witnesses attested and subscribed to the Will in
the presence of the testator and of one another. In fact, even the
petitioners acceded that the signature of Paciencia in the Will may be
authentic although they question her state of mind when she signed
the same as well as the voluntary nature of said act.
The burden to prove that Paciencia was of unsound mind at the time
of the execution of the will lies on the shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was
"magulyan" or forgetful so much so that it effectively stripped her of

43

SUCCESSION. SET 2.
testamentary capacity. They likewise claimed in their Motion for
Reconsideration66 filed with the CA that Paciencia was not only
"magulyan" but was actually suffering from paranoia. 67

Bare allegations of duress or influence of fear or threats, undue and

improper influence and pressure, fraud and trickery cannot be used as
basis to deny the probate of a will.

We are not convinced.

An essential element of the validity of the Will is the willingness of

the testator or testatrix to execute the document that will distribute
his/her earthly possessions upon his/her death. Petitioners claim that
Paciencia was forced to execute the Will under duress or influence of
fear or threats; that the execution of the Will had been procured by
undue and improper pressure and influence by Lorenzo or by some
other persons for his benefit; and that assuming Paciencias signature
to be genuine, it was obtained through fraud or trickery. These are
grounded on the alleged conversation between Paciencia and Antonio
on September 16, 1981 wherein the former purportedly repudiated
the Will and left it unsigned.

We agree with the position of the CA that the state of being forgetful
does not necessarily make a person mentally unsound so as to render
him unfit to execute a Will.68 Forgetfulness is not equivalent to being
of unsound mind. Besides, Article 799 of the New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
In this case, apart from the testimony of Rosie pertaining to
Paciencias forgetfulness, there is no substantial evidence, medical or
otherwise, that would show that Paciencia was of unsound mind at
the time of the execution of the Will. On the other hand, we find more
worthy of credence Dra. Limpins testimony as to the soundness of
mind of Paciencia when the latter went to Judge Limpins house and
voluntarily executed the Will. "The testimony of subscribing
witnesses to a Will concerning the testators mental condition is
entitled to great weight where they are truthful and
intelligent."69 More importantly, a testator is presumed to be of sound
mind at the time of the execution of the Will and the burden to prove
otherwise lies on the oppositor. Article 800 of the New Civil Code
states:
Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it
during a lucid interval.
Here, there was no showing that Paciencia was publicly known to be
insane one month or less before the making of the Will. Clearly, thus,
the burden to prove that Paciencia was of unsound mind lies upon the
shoulders of petitioners. However and as earlier mentioned, no
substantial evidence was presented by them to prove the same,
thereby warranting the CAs finding that petitioners failed to
discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the
nature of her estate to be disposed of, the proper objects of her bounty
and the character of the testamentary act. As aptly pointed out by the
CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the
nature of the document she executed. She specially requested that the
customs of her faith be observed upon her death. She was well aware
of how she acquired the properties from her parents and the
properties she is bequeathing to LORENZO, to his wife CORAZON
and to his two (2) children. A third child was born after the execution
of the will and was not included therein as devisee. 70

We are not persuaded.

We take into consideration the unrebutted fact that Paciencia loved
and treated Lorenzo as her own son and that love even extended to
Lorenzos wife and children. This kind of relationship is not unusual.
It is in fact not unheard of in our culture for old maids or spinsters to
care for and raise their nephews and nieces and treat them as their
own children. Such is a prevalent and accepted cultural practice that
has resulted in many family discords between those favored by the
testamentary disposition of a testator and those who stand to benefit
in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias
relationship with Lorenzo and his family is different from her
relationship with petitioners. The very fact that she cared for and
raised Lorenzo and lived with him both here and abroad, even if the
latter was already married and already has children, highlights the
special bond between them. This unquestioned relationship between
Paciencia and the devisees tends to support the authenticity of the
said document as against petitioners allegations of duress, influence
of fear or threats, undue and improper influence, pressure, fraud, and
trickery which, aside from being factual in nature, are not supported
by concrete, substantial and credible evidence on record. It is worth
stressing that bare arguments, no matter how forceful, if not based on
concrete and substantial evidence cannot suffice to move the Court to
uphold said allegations.71Furthermore, "a purported will is not [to be]
denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its
foundation, for even if a will has been duly executed in fact, whether
x x x it will be probated would have to depend largely on the attitude
of those interested in [the estate of the deceased]."72
Court should be convinced by the evidence presented before it that
the Will was duly executed.
Petitioners dispute the authenticity of Paciencias Will on the ground
that Section 11 of Rule 76 of the Rules of Court was not complied
with. It provides:
RULE 76
Allowance or Disallowance of Will
Section 11. Subscribing witnesses produced or accounted for where
will contested. If the will is contested, all the subscribing witnesses,
and the notary in the case of wills executed under the Civil Code of
the Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such
witnesses are present in the Philippines but outside the province

44

SUCCESSION. SET 2.
where the will has been filed, their deposition must be taken. If any
or all of them testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful
credibility, the will may nevertheless, be allowed if the court is
satisfied from the testimony of other witnesses and from all the
evidence presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be allowed if at least
three (3) witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the
handwriting of the testator; in the absence of any competent
witnesses, and if the court deem it necessary, expert testimony may
be resorted to. (Emphasis supplied.)
They insist that all subscribing witnesses and the notary public should
have been presented in court since all but one witness, Francisco, are
still living.
We cannot agree with petitioners.
We note that the inability of Faustino and Judge Limpin to appear and
testify before the court was satisfactorily explained during the
probate proceedings. As testified to by his son, Faustino had a heart
attack, was already bedridden and could no longer talk and express
himself due to brain damage. To prove this, said witness presented
the corresponding medical certificate. For her part, Dra. Limpin
testified that her father, Judge Limpin, suffered a stroke in 1991 and
had to undergo brain surgery. At that time, Judge Limpin could no
longer talk and could not even remember his daughters name so that
Dra. Limpin stated that given such condition, her father could no
longer testify. It is well to note that at that point, despite ample
opportunity, petitioners neither interposed any objections to the
testimonies of said witnesses nor challenged the same on cross
examination. We thus hold that for all intents and purposes, Lorenzo

was able to satisfactorily account for the incapacity and failure of the
said subscribing witness and of the notary public to testify in court.
Because of this the probate of Paciencias Will may be allowed on the
basis of Dra. Limpins testimony proving her sanity and the due
execution of the Will, as well as on the proof of her handwriting. It is
an established rule that "[a] testament may not be disallowed just
because the attesting witnesses declare against its due execution;
neither does it have to be necessarily allowed just because all the
attesting witnesses declare in favor of its legalization; what is
decisive is that the court is convinced by evidence before it, not
necessarily from the attesting witnesses, although they must testify,
that the will was or was not duly executed in the manner required by
law."731wphi1
Moreover, it bears stressing that "[i]rrespective x x x of the posture of
any of the parties as regards the authenticity and due execution of the
will x x x in question, it is the mandate of the law that it is the
evidence before the court and/or [evidence that] ought to be before it
that is controlling."74 "The very existence of [the Will] is in itself
prima facie proof that the supposed [testatrix] has willed that [her]
estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given
full effect independent of the attitude of the parties affected
thereby."75 This, coupled with Lorenzos established relationship with
Paciencia, the evidence and the testimonies of disinterested
witnesses, as opposed to the total lack of evidence presented by
petitioners apart from their self-serving testimonies, constrain us to
tilt the balance in favor of the authenticity of the Will and its
allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15,
2006 and the Resolution dated August 31, 2006 of the Court of
Appeals in CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.

45